- Treaties, invalidity, termination, suspension, withdrawal — Treaties, effect for third states — Vienna Convention on the Law of Treaties
1. The 1969 Vienna Convention on the Law of Treaties Provisions Governing Absolute Invalidity and their Shortcomings
Article 53 of the 1969 Vienna Convention on the Law of Treaties (VCLT) provides that a treaty conflicting with a peremptory norm of general international law is void. In such a case of invalidity, no separation of the provisions of the treaty is permitted (Article 44(5)). Parties to a treaty void under Article 53 have a duty, as far as possible, to eliminate the consequences of any act performed in reliance on the treaty (Article 71(1)). These rather severe consequences suggest the use of the expression ‘absolute invalidity’ in order to distinguish it from other cases, where invalidity may be limited to parts of the treaty, or where acts carried out in performance of the treaty in good faith before the invocation of invalidity are not rendered unlawful by a later declaration of invalidity (Article 69(2)(b)).
On the other hand, the validity of a treaty in conflict with a peremptory norm may be challenged exclusively as provided by the VCLT (Article 42). According to the Convention, only a state party to the treaty may impeach its validity. That state must follow the procedure set out in Articles 65–68. If a dispute arises among the parties as to the existence of this particular ground for invalidity, which cannot be solved through other peaceful settlement means within 12 months, Article 66 entitles each party unilaterally to submit the dispute to the International Court of Justice. The Vienna Convention enables a party to invoke the invalidity of a treaty only at the end of the settlement procedures, and does not provide for any exception in case of conflict of the treaty with a peremptory norm. States not parties to the treaty have no way, under the Vienna Convention, to claim its invalidity, even if the reason is conflict with a norm considered by the international community as a whole not to be derogated from.(p. 334)
In his 1981 Hague Academy lectures, Professor Gaja remarked how these provisions follow two ‘hardly reconcilable’ approaches.1 Indeed, it seems contradictory to identify a reason for invalidity of a treaty in its contrast with a fundamental rule of the international community as a whole and then leave to the parties of the treaty the initiative and the choice of invoking the invalidity.2 Under the VCLT it appears that invaliditycannot be declared before a judgment of the International Court of Justice or an agreement reached among the parties.3
The Vienna Convention position has supported the view that peremptory norms do not necessarily give rise to obligations erga omnes. According to this opinion, some peremptory norms have a reciprocal nature, that is, they give rise in the specific situation to bilateral relationships.4 The Vienna Convention would apply to these peremptory rules. Such an opinion is different from the one convincingly maintained, among others, by Professor Gaja and according to which all peremptory norms give rise to obligations erga omnes.5 Whether one follows the opinion that all peremptory norms give rise to erga omnes obligations, or that only some of them do, the question remains how third states may raise the issue of invalidity of treaties conflicting with peremptory norms from which erga omnes obligations arise.
To add to the complexity of the picture, the Vienna Convention establishes in a specific provision (Article 52) that a treaty concluded under the threat or use of force is void. While a treaty having as its object the illegal threat or use of force is void under Article 53, invalidity under Article 52 affects treaties where the threat or use of force vitiated the consent of one party in the conclusion of the agreement. At least with regard to aggression, both grounds of invalidity are consequences drawn from a contrast with the peremptory norm included in the(p. 335)
prohibition of use of force. While in the case of Article 52 it is again only the parties who may claim the invalidity, they may not, however, under the VCLT, refer the dispute unilaterally to the International Court; also, the consequences of invalidity in this case are somehow different from those provided in the case of invalidity established under Article 53,6 even if Article 52 too is considered a case of absolute invalidity.7
With regard to the scope of application of the Vienna Convention, the procedure for the settlement of disputes there established applies only to the states parties to the VCLT and to treaties concluded after the entry into force of the Convention. The International Court of Justice has considered that procedure to correspond, in its very general terms, to a customary obligation to act in good faith.8 The Court referred, however, to grounds for invalidity different from conflict with peremptory norms or coercion, and stressed the duty of the states parties to communicate and to solve the possible resulting dispute by peaceful means. No light is shed on the issue of how third states may claim the invalidity of treaties considered absolutely void.
The unsatisfactory treatment by the VCLT of the invocation of invalidity of a treaty in conflict with peremptory norms has various causes. Facing a range of criticisms, the International Law Commission (ILC) had chosen to merely reaffirm the obligation to resolve disputes through amiable procedures, when a dispute arose about the existence of grounds of invalidity, suspension, and termination of treaties. The Commission had limited itself to recalling Article 33 of the UN Charter in order to preserve the stability of treaties, fully aware that it was not an ideal solution.9 The specific procedural provisions concerning the International Court of Justice's jurisdiction with regard to nullity and termination because of conflict with jus cogens were introduced ‘at the eleventh hour’ at the Vienna Conference, as part of a more general compromise solution and as a way of limiting the risk of abusive uses of this novel ground for invalidity, as References(p. 336) well as termination.10 The position of third states was probably not addressed also because the nature and character of jus cogens, and its connections with erga omnes obligations, were not appreciated by states and doctrine uniformly: a situation that does not appear to have been definitively resolved.11
2. Possible Approaches Concerning the Position of Third States with Regard to Treaties Absolutely Invalid
One way to overcome the discrepancies of the 1969 discipline consists in admitting that third states may claim that the treaty in conflict with a peremptory norm or concluded under duress is void, without having to wait for the parties to invoke the invalidity and follow the Vienna Convention procedure.12 Some practice, like General Assembly resolutions 33/28 A and 34/65 B (1979), questioning the validity of the 1978 Camp David accords with regard to the principle of self-determination of peoples, might be quoted to support the view.13 To allow such a conclusion would amount to stating that the solution adopted in 1969 has been superseded by subsequent practice, or that it never corresponded to the practice of states, or that at the very least it corresponded only partially, because it does not take into consideration third states. In all of these cases, some more proof about the emergence or the content of a customary rule should be found.
Another possible solution is to leave the issue of the validity of the treaty to the parties, but at the same time to qualify the conclusion of a treaty conflicting with a peremptory norm or vitiated by coercion as a wrongful act toward all states members of the international community.14 Professor Gaja follows a different reasoning. In his words, ‘[t]he peremptory norm removes the threat of a violation of the obligations it imposes by invalidating any treaty which, if implemented, (p. 337) would entail such a violation’.15 It would thus appear that, in his opinion, only the implementation of the agreement would constitute a breach of an obligation deriving from a peremptory norm.
The ILC has not given a clear answer to either of these last two approaches. The conduct or omission is not defined by the law of responsibility in case of grave breaches of obligations arising from peremptory norms in any way differently from ordinary breaches of obligations arising from other customary or conventional rules.16 The ILC chose not to enter into the details of when a breach of an obligation occurs, preferring instead to state a few general rules and to refer the answer to an analysis of the content of the primary rule.17 The question of whether the conclusion of a treaty which conflicts with a peremptory norm is in itself a (grave) breach of an obligation deriving from a peremptory norm is therefore left by the Commission to the interpretation of the primary, peremptory rule.18
Should the answer be positive, the consequences provided for in Article 41 of the 2001 ILC's text on state responsibility would apply immediately at the conclusion of the treaty.19 This article requires all the states to cooperate to bring the breach to an end and not to aid or assist in maintaining the situation created by the breach; also, and more interestingly for the purposes of this analysis, the provision obliges those states not to recognize as lawful a situation created by the serious breach. If one were to consider that the conclusion of an agreement in conflict with a peremptory norm constitutes a grave breach of an obligation deriving from such norm, the question of the ways open to third parties to claim the nullity of the treaty would lose much of its relevance. If third states were obliged, following Article 41 of the state responsibility codification, not to recognize as lawful the situations arising from the treaty, it would indeed come very close to saying that the treaty should be considered void by third parties.20
This does not amount to denying that the scope of the two codifications is different. The law of treaties is concerned with the normative level and affirms that conflict with a jus cogens rule makes the treaty void, by applying a hierarchic, value-based approach and qualifying as void the lower rule in contrast with the superior rule. The treaty therefore produces no legal effects, does not bind the parties at any time, and does not give rise to situations which third states must (p. 338) confront. How to ascertain this kind of nullity is a question only incidental to such a solution.
The law of responsibility assumes instead that there is a conduct or omission in violation of the peremptory rule, and it qualifies such conduct as wrongful. The law of responsibility is not concerned with rules, but with the behaviour of states.21 The wrongful conduct may even be required by some other international rule, effective and binding because not necessarily in conflict with the peremptory rule.22 The wrongful act implies consequences both for the wrongdoer and for the injured state. The content of the law of responsibility is summarized as the new legal relationship giving rise to rights and duties of the states involved.
However, the distinction between the two areas of law is in the specific case less clear. By concluding a treaty in conflict with a peremptory rule, a state adopts at the same time a conduct—which could be considered wrongful per se aside from a subsequent implementation of the treaty—and a normative act—which can be legally qualified as void. Also, to oblige all states not to recognize as lawful the situation created by the treaty, because it represents a grave breach of a peremptory rule, would bring the reactions to the wrongful act to the level of legality of the act, a level which is proper to the law of treaties.
Still another possible approach could consist in considering a duty not to recognize treaties concluded in violation of peremptory norms as part of the content of the primary, peremptory rules. The present writer has already maintained this view with regard to the duty imposed on all states by Article 41 of the state responsibility codification.23
3. Non-Recognition and Its Meanings
In order not to relegate the discussion on the position of third states to a theoretical analysis, an inquiry into cases where third states have claimed these particular grounds of invalidity seems necessary. The relevant practice consists of cases where states have resorted to the use of the term ‘invalidity’ but also and more (p. 339) frequently to that of non-recognition of a treaty. In its turn, the last expression is strictly intertwined with the non-recognition of situations arising from a treaty. This relationship deserves a few words.
Generally, the term ‘recognition’ identifies a unilateral act having as its object the establishment by a state of a factual or legal situation, which cannot later be contested by the same state.24 As such, it is a basic instrument of legal relationships among states in international law.
The term has long been specifically used with regard to new states or new governments. At the same time, works devoted to the topic of state recognition do not fail to address non-recognition of situations as well.25 This may be due to the fact that non-recognition very often follows the establishment or enlargement of states, where new states, or significant territorial changes in pre-existing states, emerge. Non-recognition of situations arising from the new establishment may therefore appear simply as a consequence of the non-recognition of a new state or government or of some acts of a pre-existing state.26 At the very least, non-recognition may assume the guise of a protest to avoid acquiescence towards the newly created situation.27
A brief review of the origins of the practice of non-recognition of situations sheds a different light on the notion, however. Non-recognition has in fact long been considered a tool to assert the illegality of situations, at first arising from the establishment of new entities contrary to the rules forbidding resort to war, and later in contrast with the principles of self-determination or forbidding grave forms of discrimination, such as apartheid. This topic has been extensively analysed.28 The following short investigation will concentrate on whether this practice is relevant with regard to non-recognition of treaties because of their invalidity.(p. 340)
4. The Early Practice Concerning Non-Recognition of Treaties and Situations
The relevant practice dates back to the Americas during the nineteenth century. At that time the American states were trying to prevent territorial changes due to the use of force and to agreements concluded following a conquest, as well as the presence on the American continent of foreign, especially European, powers. In the oldest instruments, a duty not to recognize concerns territorial situations and is coupled with the declaration of nullity of acts of cession of territory, following the use or threat of use of force.29 In later instruments, like the 1933 Convention on the Rights and Duties of States and the Anti-war Treaty of Non-aggression and Conciliation (the Saavedra Lamas Treaty) of the same year, states parties undertake ‘the precise obligation not to recognize territorial acquisitions or special advantages obtained by force’30 ‘nor the validity of the occupation or acquisition of territories that may be brought about by force of arms’.31 These provisions are the antecedent of Article 21 of the Charter of the Organization of American States, where member states declare that ‘[n]o territorial acquisitions or special advantages obtained either by force or by other means of coercion shall be recognized’.32
In Europe, non-recognition appears at the beginning of the twentieth century, particularly during and after World War I with regard to treaties implying territorial changes.33 Non-recognition may occur through a unilateral declaration or be stipulated in an agreement.34 Non-recognition here concerns the treaty concluded (p. 341) under the use of force; if it affects the territorial situations, it is because this is the object of the treaty itself. That in such cases non-recognition is closest to a declaration of invalidity of the treaty is apparent from the interchangeable use of the two expressions.35
The strict interrelationship between non-recognition and invalidity is confirmed by the better-known practice concerning relations between China and Japan in the first half of the twentieth century. The so-called Stimson doctrine was actually formulated in 1915, when State Secretary Bryan sent to those two states a note affirming that ‘it cannot recognize any agreement or undertaking, which has been entered into or which may be entered into between the Governments of China and Japan impairing the treaty rights of the United States and its citizens in China, the political or territorial integrity of the Republic of China, or the international policy relative to China commonly known as the Open Door Policy’.36 The note sent by Stimson to China and Japan on 7 January 1932 deals with the developments of the same dispute. Terms employed are very similar to those referred to above. The note states that the government of the United States ‘cannot admit the legality of any situation de facto nor does it intend to recognize any treaty or agreement entered into between these governments’ having the same object as those quoted in the 1915 note. The note of 1932, however, adds that the US government ‘does not intend to recognize any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928 to which treaty both China and Japan, as well as the United States, are parties’.37 In comparison to the 1915 note, this last sentence broadens significantly the scope of non-recognition.38 According to part of the doctrine of the time, non-recognition of ‘the fruits of aggression’ was indeed a duty falling on all states parties to the Covenant and the Briand-Kellogg Pact.39
There are further indications that non-recognition was perceived at the time as a tool to affirm international legality.40 One may recall some positions taken (p. 342) within the League of Nations, and especially the Assembly resolution concerning the Manchuria question, which states that it is ‘incumbent upon the Members of the League of Nations not to recognize any situation, treaty, or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris’.41
This practice was welcomed at the time as a significant step towards the principle that treaties concluded through the use of force are void.42 While the practice found some application in the Leticia affair,43 later developments concerning the Italian conquest of Ethiopia and treaties concluded by the Nazi government were bound to cool down the enthusiasm for the new doctrine.
In general terms, non-recognition may be said to find its origins in the movement, at first regional and later universal, to ban the use of force. With regard to treaties, the expressions ‘invalidity’ and ‘non-recognition’ are at times used interchangeably. This usage is telling about the strict relationship between the nullity of the agreement concluded under threat or use of force and non-recognition not only of territorial changes, but more generally of all the situations—factual and legal—arising from the agreement.44,45(p. 343)
Non-recognition of a treaty at this time may be described as the determination of the conflict of that treaty with other prior instruments forbidding the use of force. The novelty consists in the fact that the contrast is not treated by way of a wrongful act, but rather considered a reason of invalidity. These statements generally anticipate the implementation of the treaty. The ILC itself, while drafting Article 52 of the VCLT, traced back to this time, and in reference to the Covenant of the League of Nations and the Briand-Kellogg Pact, the opinion that agreements concluded through the use or threat of force ‘should no longer be recognized as legally valid’.46
The change in significance that the notion of non-recognition in this context was undergoing with regard to the more traditional recognition of states or governments did not go unnoticed by the doctrine of the time.47 The new approach was not free from criticism, both because it was open to political abuse and because of the theoretical difficulty of tracing a cause for nullity to a customary and ‘overriding’ rule.48
Where invalidity of treaties concluded under the threat or use of force starts to be affirmed, the notion of non-recognition by third states appears as well. This seems indeed to be an essential element of the ‘new doctrine’. Also, the source of non-recognition is found in the primary rules forbidding, at the time, resort to war—at the universal level, the Covenant and the Briand-Kellogg Pact. A prior collective statement does not appear to be a necessary prerequisite for non-recognition.49
5. The Later Practice
Contrary to the Charter of the Organization of American States, the Charter of the United Nations does not mention a duty of non-recognition, either with regard to situations or treaties.50(p. 344)
United Nations practice concerning non-recognition of territorial situations arising from grave breaches of peremptory norms is, however, substantial, and relates to both specific cases addressed by the Security Council and General Assembly Declarations, as well as rulings by the International Court of Justice. This practice is not limited to the consequences of violations of the prohibition on the use of force, but also encompasses violations of the prohibition on apartheid and of the principle of self-determination of peoples. Indeed, the ILC referred to this practice, when drafting in Article 41 of the Articles on State Responsibility a duty not to ‘recognize as lawful a situation created by a serious breach’.51
Some contemporary practice relating to the present enquiry does also exist, though perhaps less substantial. The preparatory works of the Vienna Convention testify that the issue was not addressed and therefore was left to general international law. The invocation of absolute nullity by third states did not in fact receive much attention, as participating states were more concerned about the establishment of a binding procedure for the parties to the treaty to objectively ascertain the conflict with jus cogens. Among the few states who addressed the issue, some declared that the notion of invalidity because of conflict with peremptory norms included its invocability by any state;52 others merely remarked that the proposed Convention had left open the question as to whether third states could invoke that invalidity.53
Some resolutions by the General Assembly—among them, the ones concerning the abovementioned Camp David accords—express in firm, if not precise, terms the ‘rejection’ of agreements concluded in conflict with the principle of self-determination.54 Some of these resolutions were adopted with negative votes (p. 345) or abstentions; the point of disagreement appears, however, to be political, rather than connected with the invalidity proclaimed for the agreements in question.
With regard to other specific cases, in its Advisory Opinion of 1971 on Namibia the International Court of Justice declared that, following the declaration of illegality by the Security Council of the continued presence of South Africa in Namibia, ‘member States are under obligation to abstain from entering into treaty relations with South Africa’ when this state was acting in relation to Namibia. The Court stated that it gave advice ‘on those dealings with the Government of South Africa which, under the Charter of the United Nations and general international law, should be considered inconsistent with the declaration of … invalidity’ rendered by the Security Council.55 In relation to the present inquiry, it is relevant that the Court devoted some attention to states not members of the United Nations. The Court declared that ‘no State which enters into relations with South Africa concerning Namibia may expect the United Nations or its Members to recognize the validity or effects of such relationship, or of the consequences thereof’.56
The East Timor case addressed by the International Court of Justice is also relevant. At issue was the conclusion of a 1989 agreement between Australia and Indonesia concerning the establishment of a zone of cooperation in the Timor Gap and involving the delimitation of the continental shelf between the two countries corresponding to the East Timor coast, as well as negotiations concerning the exploration and exploitation of the continental shelf and of the subsoil of the sea.57 The Court, while it admitted that according to both Portugal and Australia the people of East Timor had a right to self-determination, found that there was no clearly binding resolution by UN organs stating an obligation not to recognize any authority of Indonesia over the territory. The Court recalled that some states had concluded agreements with Indonesia, without making reservations in relation to East Timor, and that the letter of protest circulated by Portugal at the United Nations after the conclusion of the 1989 agreement had not been followed by actions on the part of the General Assembly or the Security Council.58 Portugal, in its authority as administering power, had been careful in presenting its claim as a request for the Court to ascertain the breach by Australia of the right of East Timor's people to self-determination and of Portugal's rights, References(p. 346) and to adjudge the reparation of the damage caused to the people of East Timor.59 Australia had stressed that Portugal's application was really concerned with the validity of the agreement, and that the Court could not decide on this issue without considering whether Indonesia's conduct was lawful.60 The Court agreed that the dispute necessarily concerned Indonesia, and that it could not render a decision in the absence of this party. The Court considered that a judgment would have had to deal necessarily with the question of the legality of Indonesia's presence in East Timor, and, as a consequence, of its ‘treaty-making power’ with regard to the delimitation and resources of East Timor's continental shelf.61
The conclusion of a treaty has been qualified in this case at the same time as both a breach of a peremptory rule (by a third state) and as a possible invalid act (by a state party).62 Also, the Court may have implied that a duty not to recognize the treaty could have arisen only from a binding resolution of UN organs, even if the matter concerned self-determination.
Practice includes other cases where individual third states have maintained the invalidity of treaties because of conflict with peremptory norms, such as the position taken by the United States with regard to the Treaty of 1978 between the USSR and Afghanistan,63 or by Algeria in relation to the Madrid Agreement concluded by Spain, Morocco, and Mauritania in 1975 concerning Western Sahara.64 It is, however, unclear whether these states, clearly moved by political motivations, believed at the same time that they had a duty not to consider the Treaty valid. The silence of other states might be interpreted against the existence of such a duty, but it might also be due to the uncertainty about the existence of a conflict of the Treaties with peremptory norms.
The fact that the invalidity of a treaty concluded under coercion or in conflict with jus cogens has been directly or indirectly affirmed by international jurisprudence, independently from a request by the states parties, is not immediately relevant to the present inquiry,65 but it strengthens the notion that the declaration of invalidity is not dependent upon the initiative of the parties. When invalidity is ascertained by a court of a third state, this is instead relevant state practice. This is the case of the 1938 Munich Agreement on the transfer to Germany of the Sudetenland, considered void by Dutch courts after World War II, because (p. 347) it had been concluded under the threat of force.66 As national courts refer more frequently nowadays to the concept of jus cogens, they seem more willing to acknowledge the invalidity of a treaty in conflict with a peremptory norm, or concluded under coercion.67
6. Towards an Obligation for Third States not to Recognize a Treaty as Absolutely Invalid
With regard to non-recognition of territorial situations arising from a grave breach of a peremptory rule, critics have long expressed the view that it is difficult to conceive of their nullity when those situations are effective.68 Other criticisms affirm that genocide or torture do not give rise to any consequences ‘capable of being denied by other States’.69 These views, whatever their merits, cannot be applied to treaties. Treaties are legal acts; their non-recognition can well express states’ appreciation of their validity or invalidity according to the law of treaties.70
When the ILC proposed coercion and conflict with jus cogens as grounds of invalidity of treaties, it built on some pre-existing practice; and this practice related significantly to the positions assumed by third states. Even a brief review of the origins of the notion of non-recognition shows how this expression was used in relation to both territorial situations and treaties. The term conveys, with regard to treaties, simply the opinion of a state not party that a certain treaty is invalid.
More contemporary practice does nothing to dispel the idea that third states consider a treaty invalid because it is in conflict with peremptory rules References(p. 348) or concluded under coercion, independently from the initiatives of states parties.71 As the Vienna Convention preparatory works did not address the position of third states, this may be considered a matter left out of codification.
What seems to result clearly from earlier and later practice is that non-recognition is linked to the primary and peremptory norm. Because the norms evoked (prohibition on aggression, self-determination, prohibition on apartheid) are understood to be addressing all states, states not parties to the treaty consider themselves entitled not to recognize the treaty.
This still does not explain, however, whether the conclusion of a treaty in conflict with a peremptory norm may at the same time be considered a wrongful act, and whether an obligation not to recognize arises as a legal consequence of this wrongful act; or whether third states have a duty not to recognize the invalid treaty simply on the basis of the peremptory norm.
In the absence of different indications from practice, the preferable solution appears to consider non-recognition as part of the content of the primary peremptory rule.72 A duty of non-recognition has little to do with the consequences of a wrongful act. Non-recognition is an obligation concerning all states, including the wrongdoers, and this by itself is quite exceptional in the regime of responsibility. Also, the obligation is not instrumental in the exercise of some other right, as in the case of obligations which the injured state must fulfil prior to resort to countermeasures. The fact that an obligation in this sense is provided for in Article 41 of the state responsibility codification may be explained by noting that the duty arises in the specific situation only once an invalid treaty has been concluded: a condition similar to the duty of cessation of the continuous wrongful act by the wrongdoer state provided for in Article 30 of the responsibility codification, considered by the ILC to be an effect of the primary rule. The conclusion reached finds some support in the Wall Opinion, where the Court links the obligation not to recognize the illegal situation resulting from the construction of the wall in the occupied Palestinian Territory to the ‘character and importance of the rights and obligations involved’.73,74References(p. 349)
A crucial point which appears to be left open by practice is whether states have a duty, or rather a discretionary power, not to recognize the invalid treaty under general international law and independently from binding resolutions.75 Because of the absolute character of the invalidity, and of the peremptory primary rule, third states should have an obligation to consider the treaty null. This would furthermore appear consistent with the Opinion on the Wall as well as the state responsibility codification, which is admittedly on this point partially a work of progressive development of international law.76 Practice seems to point out the difficulty of ascertaining the conflict with a peremptory norm—a difficulty resolved by a UN organ resolution—more than the uncertainty about the consequences to be drawn by the contrast, once established.77
2 C.L. Rozakis, The Concept of ?Jus Cogens in the Law of Treaties (Amsterdam, New York: North-Holland Pub. Co., 1976) 118 et seq.; A. Orakhelashvili, Peremptory Norms in International Law (Oxford: Oxford University Press, 2006) 134.
3 G. Gaja, ‘Jus Cogens beyond the Vienna Convention’, supra note 1, at 285. As noted by the Federal Republic of Germany during the Vienna Conference (United Nations Conference on the Law of Treaties, Official Records, vol. I, 226), an agreement among the parties would not be suitable to establish the presence or absence of a conflict of a treaty with jus cogens.
4 Among Italian scholars, this idea has been supported mostly by P. Picone, ‘Obblighi reciproci e obblighi erga omnes degli Stati nel campo della protezione internazionale dell'ambiente marino dall'inquinamento’, in V. Starace (ed.), Diritto internazionale e protezione dell'ambiente marino (Milano: Giuffré, 1983) 15, at 41–2, footnote 56; a more articulated notion of peremptory norms having a bilateral character has lately been put forward in P. Picone, ‘La distinzione tra norme internazionali di jus cogens e norme che producono obblighi erga omnes’, 91 Riv. di Diritto Internaz. (2008) 5 et seq. See also B. Conforti, Cours général de droit international public, 212 Recueil des Cours (1988-V) 134–5. For further references, see C.J. Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge: Cambridge University Press, 2005) 146 et seq.
5 G. Gaja, ‘Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts’, in J.H.H. Weiler, A. Cassese, and M. Spinedi (eds), International Crimes of States (Berlin: De Gruyter, 1989) 151; ‘First Report, Obligations and Rights erga omnes in International Law’, 71 Annu. de l'Inst. de Droit Internat., Session de Cracovie (2005) vol. I, at 127–8.
6 See Article 69, para. 2, and Article 71, para. 1. See the observations of H. Waldock and other members of the Commission YILC (1963), vol. I, 52. W. Czaplinski, ‘Jus Cogens and the Law of Treaties’, in Ch. Tomuschat and J.-M. Thouvenin (eds), The Fundamental Rules of the International Legal Order (Leiden–Boston: Martinus Nijhoff Publishers, 2006) 83, 90, maintains that the ‘only logical explanation’ for the separate provision is that ‘there was a general consensus among the participants as to the invalidity of a treaty concluded under coercion, but not as to jus cogens’. M.E. Villiger, Commentary to the 1969 Vienna Convention on the Law of Treaties (Leiden–Boston: Martinus Nijhoff Publishers, 2009) states that the Article 52 ground of invalidity ‘does not constitute jus cogens’, because the use of force is not the object of the treaty.
7 T.O. Elias, ‘Problems Concerning the Validity of Treaties’, 134 Recueil des Cours (1971-III) 347, 381; G. Gaja, ‘Trattati internazionali’, Digesto delle Discipline Pubblicistiche (Torino: UTET, 1999) vol. XV, 361.
Article 52 has been recognized by the International Court of Justice as a rule corresponding to general international law in the Fisheries Jurisdiction (United Kingdom v Iceland), Judgment of 2 February 1973, ICJ Reports (1973) 14.
10 Quotation from G. Gaja, ‘Jus Cogens beyond the Vienna Convention’, supra note 1, at 279; T.O. Elias, ‘Problems Concerning the Validity of Treaties’, supra note 7, at 397 et seq.; F. Capotorti, ‘L'extinction et la suspension des traités’, 134 Recueil des Cours (1971-III) 559 et seq.
12 S. Rosenne, ‘The Settlement of Treaty Disputes under the Vienna Convention of 1969’, 31 ZaöRV (1971) 35 footnote 97, 54 footnote 168; J.A. Frowein, ‘Jus Cogens’, 7 Encyclopaedia of Public International Law (1984) 329; J.A. Frowein, ‘Collective Enforcement of International Obligations’, 47 ZaöRV (1987) 77–8; B. Simma, ‘From Bilateralism to Community Interest in International Law’, 250 Recueil des Cours (1994-IV) 289; A.L. Paulus, ‘Jus Cogens in a Time of Hegemony and Fragmentation’, 74 Nordic JIL (2005) 305.
13 G. Gaja, ‘Trattati internazionali’, supra note 7, at 361.
14 G. Barile, ‘La structure de l'ordre juridique international’, 161 Recueil des Cours (1978-III) 9, at 88, 89, 93–4; W. Czaplinski, ‘Jus Cogens and the Law of Treaties’, in Ch. Tomuschat and J.-M. Thouvenin (eds), The Fundamental Rules of the International Legal Order, supra note 6, at 89–90. See also P. Reuter, Introduction au droit des traités (Paris: Presses Universitaires de France, 3rd edn reviewed by P. Cahier, 1995) 159, 162–3.
15 G. Gaja, ‘Jus Cogens beyond the Vienna Convention’, supra note 1, at 282.
18 The International Law Commission did not consider the case of the conclusion of a conflicting treaty, per se, among the examples of breach of a primary obligation (YILC (2001), vol. II(2), 54 et seq.) or of a peremptory rule (YILC (2001), vol. II(2), 110 et seq.).
19 W. Czaplinski, ‘Jus Cogens and the Law of Treaties’, in Ch. Tomuschat and J.-M. Thouvenin (eds), The Fundamental Rules of the International Legal Order, supra note 6, 83, at 89–90, refers instead to Article 48.
21 This is the assumption of Professor Gaja's position, quoted earlier in the text of this paragraph. In the words of the German Constitutional Court's judgment of 26 October 2004, commenting on Articles 53 of the Vienna Convention and 41 of the state responsibility text, ‘the legal consequence of voidness is laid down only to the extent that duties under treaties are directed precisely to performance that is prohibited by a peremptory norm’, available at <http://www.bundesverfassungsgericht.de/en>.
23 A. Gianelli, ‘Le conseguenze delle gravi violazioni di obblighi posti da norme imperative tra norme primarie e norme secondarie’, in M. Spinedi, A. Gianelli, and M.L. Alaimo (eds), La codificazione della responsabilità internazionale degli Stati alla prova dei fatti (Milano: Giuffrè, 2006) 245 et seq.
25 J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine (Paris: Pedone, 1975). For an exhaustive bibliography on non-recognition, which includes works relevant in the present inquiry, see S. Talmon, Recognition in International Law. A Bibliography (The Hague: Martinus Nijhoff Publishers, 2000).
27 J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine, supra note 25, 309.
28 Among others, G. Ziccardi Capaldo, Le situazioni territoriali illegittime nel diritto internazionale (Napoli: Editoriale Scientifica, 1977); J. Dugard, Recognition and the United Nations, supra note 26; E. Milano, Unlawful Territorial Situations in International Law (Leiden: Martinus Nijhoff Publishers, 2006); S. Talmon, ‘The Duty Not to “Recognize as Lawful” a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?’, in Ch. Tomuschat and J.-M. Thouvenin (eds), The Fundamental Rules of the International Legal Order The Fundamental Rules of the International Legal Order, supra note 6, 99; T. Christakis, ‘L'obligation de non-reconnaissance des situations créées par le recours illicite à la force ou d'autres actes enfreignant des règles fondamentales’, ibid., 127.
29 Article 13 of the Continental Treaty, concluded by seven states in Santiago, Chile, in 1856, stated that ‘[t]he High Contracting Parties undertake not to cede nor alienate, under any form, to another State or government any part of their territories, nor to permit, within said territories, the establishment of a foreign Power; the other Parties pledge themselves not to recognize such an establishment, on whatever grounds’. The recommendation adopted in 1890 by the International Conference of American States in Washington declared ‘(2) That all cessions of territory made during the continuance of the treaty of arbitration shall be void if made under threats of war or in the presence of an armed force. (3) Any nation from which such cessions shall be exacted may demand that the validity of the cessions so made shall be void if made under threats of war or in the presence of an armed force.’ Texts in R. Langer, Seizure of Territory. The Stimson Doctrine and Related Principles in Legal Theory and Diplomatic Practice (Princeton: Princeton University Press, 1947) 35, 36. See also I. Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963) 410 et seq.
30 Article 11 of the Convention on the Rights and Duties of States, available at <http://avalon.law.yale.edu>.
31 See also Article II of the Anti-war. Text available at <http://avalon.law.yale.edu>.
32 Text available at <http://www.oas.org>.
33 Relevant practice in R. Langer, Seizure of Territory. The Stimson Doctrine and Related Principles in Legal Theory and Diplomatic Practice, supra note 29, 3 et seq.
34 Examples taken from R. Langer, ibid., 19–20, 27, include the declaration given by the United Kingdom in 1918 about the peace treaty concluded by central European Powers with the so-called People's Republic of Ukraine: ‘His Majesty's Government have instructed their agent at Kiev to make a declaration to the effect that they do not recognize the peace recently concluded between the Ukraine and the Central Powers’; and Article 1 of the Treaty between the Soviet Union and Turkey of 16 March 1921: ‘Each of the Contracting Parties agrees not to recognize any peace treaty or other international agreement imposed against the other against its will.’
35 The collective declaration of the Allied Powers given one week after the United Kingdom declaration quoted in the previous footnote, qualifies the treaties as invalid. Ibid., 20.
36 S.N.D. North, ‘The Negotiations Between Japan and China in 1915’, 10 AJIL (1916) 222 et seq., quote from 235–6. China agreed to grant Japan some privileges only after an ultimatum from Japan, and clearly stated that it had been forced to accept the demands of the neighbouring state.
38 Q. Wright, ‘The Stimson Note of January 7, 1932’, supra note 37, 346–7.
40 Stimson wrote to Senator Borah, Chairman of the Foreign Relations Committee of the Senate: ‘if a similar decision should be reached and a similar position taken by the other governments of the world, a caveat will be placed upon such action which, we believe, will effectively bar the legality hereafter of any title or right sought to be obtained by pressure or treaty violation’. Q. Wright, ‘The Stimson Note of January 7, 1932’, supra note 37, 343. J. Fischer Williams, ‘The New Doctrine of “Recognition”?’, 18 Transactions of the Grotius Society (1933) 116 footnote l, notes that Stimson's doctrine ‘goes beyond the case of a treaty which violates a previous agreement when it embodies a claim to disregard a treaty resulting from “pressure”?’. The United States Senate later debated a resolution affirming to be the policy of this State ‘2. Not to recognise any treaty or agreement brought about by means contrary to the Covenant of the Pact of Paris which would impair the obligations of that Pact’ (ibid., 124). Following the adoption of the resolution by the League of Nations Assembly, quoted in the text and in the following footnote, Stimson stated that ‘[t]his action will go far toward developing into terms of international law the principles of order and justice which underlie those treaties, and the Government of the United States has been glad to cooperate earnestly in this effort’. Q. Wright, ‘The Stimson Note of January 7, 1932’, ibid., 344. For various declarations and correspondence, see R.N. Current, ‘The Stimson Doctrine and the Hoover Doctrine’, 59 The American Historical Review (1954) 51 et seq.
41 Resolution of 11 March 1932, as reproduced in A. McNair, ‘The Stimson Doctrine of Non-Recognition’, 14 BYIL (1933), 65 et seq., and Q. Wright, ‘The Stimson Note of January 7, 1932’, supra note 37, 343, where one can find also the note sent by Members of the Council of the League of Nations on 16 January 1932. Members referred to Article X of the Covenant to affirm ‘that no infringement of the territorial integrity and no change in the political independence of any member of the League brought about in disregard of this article ought to be recognized as valid and effectual by the members of the League of Nations’.
42 Q. Wright, ‘The Stimson Note of January 7, 1932’, supra note 37, 344. According to this author, the doctrine also implied that ‘[d]e facto occupation of territory gives no title’ and that ‘treaties contrary to the right of third states are void’.
43 The Council of the League of Nations stated in a resolution of 18 March 1933 that member states were obliged not to recognize any situation, any treaty, and any agreement reached by means contrary to the Covenant or to the Briand-Kellog Pact. L.H. Woolsey, ‘The Leticia Dispute between Columbia and Peru’, 27 AJIL (1933) 52–7.
44 A different opinion is maintained by J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine, supra note 25, 285. According to this author, in the OAS ‘non-reconnaissance y apparait la résultante logique de l'inviolabilité du territoire en droit des gens plutôt que celle de l'interdiction du recours à la force’.
45 Stimson included in non-recognition the non-application of some rules of the law of war towards the aggressor state, which may probably be rather seen as a countermeasure. R.N. Current, ‘The Stimson Doctrine and the Hoover Doctrine’, supra note 40, 534. A. McNair, ‘The Stimson Doctrine of Non-Recognition’, supra note 41, 72 et seq., considered among the consequences of non-recognition non-application of treaties of commerce, of extradition, of diplomatic protection, however to conclude that ‘[it] is difficult to see how such a policy can do more harm to the wrongdoing state than to the non-recognizing states’, 73. With regard to Manchukuo, Q. Wright, ‘Some Legal Aspects of the Far Eastern Situation’, 27 AJIL (1933) 512 et seq., took into account as consequences of non-recognition the non-admission of the entity to the Universal Postal Union or non-application towards Japan of the obligations of neutral states during a conflict.
46 YILC (1966), vol. II, 246 (emphasis added). See also I. Brownlie, International Law and the Use of Force by States, supra note 29, 404 et seq.
47 J. Fischer Williams, supra note 40, 109 et seq.
48 J. Fischer Williams, supra note 40, 121; as a possible example, he mentioned only a treaty reintroducing slavery.
49 On the positions of states within the League of Nations concerning the Italian occupation of Ethiopia, see J. Dugard, Recognition and the United Nations, supra note 26, 36 et seq.
50 Some proposals were made by Latin American states during the San Francisco Conference and at the first sessions of the General Assembly towards a provision on non-recognition in a Declaration on the rights and duties of states. Non-recognition here was linked to the prohibition of the use of force and to territorial acquisitions. J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine, supra note 25, 289 et seq.; G. Ziccardi Capaldo, Le situazioni territoriali illegittime nel diritto internazionale, supra note 28, 42 et seq.
51 The Commentary to Article 41 recalls, after the Stimson doctrine and its application in the Manchurian question, Security Council resolutions concerning Rhodesia, the apartheid policy by South Africa, the Iraqi invasion of Kuwait, as well as case law by the International Court of Justice and the European Court of Human Rights. YILC (2001), vol. II(2), 114–15.
53 Ethiopia, ibid., 314; Norway, 325; Greece, 438. One cannot agree with L.C. Rozakis, The Concept of Jus Cogens in the Law of Treaties, supra note 2, 119, when he states that ‘the Vienna Convention chose only the parties to such a treaty to be the sole executors and trustees of the international community’.
54 GA resolution 34/65 B, 29 November 1979, at para. 2 ‘[R]ejects those provisions of the accords which ignore, infringe, violate or deny the inalienable rights of the Palestinian people, including the right of return, the right of self-determination and the right to national independence and sovereignty in Palestine’, after having stated in the first preamble that ‘the validity of agreements purporting to solve the problem of Palestine required … the full attainment and exercise of the inalienable rights of the Palestinian people’ (33 negative votes, 37 abstentions; see also resolutions 36/120 F, 10 December 1981, 37/123 F, 16 December 1982, and 38/180 D, 19 December 1983; resolution 35/118, 11 December 1980, Plan of Action for the Full Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, at para. 5 ‘[C]ategorically Rejects any agreement … by colonial and racist Powers which ignores, violates, denies or conflicts with the inalienable right of peoples under colonial domination to self-determination and independence’. The resolution was adopted with the abstention of Western Countries and the negative vote of a few.
55 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports (1971) paras 121–122, at 55.
59 Ibid., 94–5.
60 Ibid., 100.
61 Ibid., 105.
62 E. Milano, Unlawful Territorial Situations in International Law, supra note 28, 185 sees in the agreement concluded by Australia a breach of the duty of non-recognition of the situation created by Indonesia's denial to East Timor of the right to self-determination.
63 The United States held that, as far as the Treaty would support Soviet intervention in that country, it was void because of conflict with jus cogens. M. Nash, ‘US Contemporary Practice Relating to International Law’, 74 AJIL (1980) 418.
64 Algeria considered the agreement invalid because it was in contrast with the principle of self-determination. On the dispute see H.P. Gasser, ‘The Conflict in Western Sahara’, 5 Yearbook of International Humanitarian Law (2002) 375–80.
65 Some cases are reported by A. Orakhelashvili, Peremptory Norms in International Law, supra note 2, 154–5.
66 I. Brownlie, International Law and the Use of Force by States, supra note 29, 405 et seq., 416 et seq.; G. Napoletano, Violenza e trattati nel diritto internazionale (Milano: Giuffrè, 1977) 402 et seq.; J.A. Frowein, ‘Nullity in International Law’, 7 Encyclopaedia of Public International Law (1984) 36. The Munich Pact was declared null in the Federal Republic of Germany–Czechoslovak agreement of 11 December 1973.
67 For the relevance of peremptory norms, among other examples, see the German Constitutional Court's judgment of 26 October 2004, paras 97–98, available at <http://www.bundesverfassungsgericht.de/en>.
68 G. Ziccardi Capaldo, Le situazioni territoriali illegittime nel diritto internazionale, supra note 28, 50 et seq. J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine, supra note 25, 590 et seq., gives to the obligation not to recognize a role only in the promotion of rules.
69 Separate Opinion by Judge Kooijmans, ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports (2004) 232, para. 44; S. Talmon, ‘The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?’, in Ch. Tomuschat and J.-M. Thouvenin (eds), The Fundamental Rules of the International Legal Order, supra note 6, 120.
70 As Ch. Tomuschat points out, ‘non-recognition is a device through which a juridical situation can be addressed’: ‘International Crimes by States: An Endangered Species?’, in K. Wellens (ed.), International Law: Theory and Practice—Essays in Honour of Erik Suy (The Hague–Boston–London: Martinus Nijhoff, 1998) 259.
71 A. de Hoogh, Obligations Erga Omnes and International Crimes (The Hague–London–Boston: Kluwer Law International, 1996) 48, reaches the conclusion that third states may invoke the invalidity of treaties in conflict with peremptory norms according to the customary law of treaties.
72 The view, certainly not a novel one (among others, R.Y. Jennings, ‘Nullity and Effectiveness in International Law’, in Cambridge Essays in International Law (London: Stevens & Sons, 1965) 75; S. Rosenne, ‘The Settlement of Treaty Disputes under the Vienna Convention of 1969’, supra note 12, 35; J.A. Frowein, ‘Jus Cogens’, supra note 12, 329), even if usually limited to brief remarks, has been lately supported by A. Orakhelashvili, Peremptory Norms in International Law, supra note 2, 143 (see this work's critical review by P. Picone, 89 Riv. di Diritto Internaz. (2006) 1240 et seq.); E. Milano, Unlawful Territorial Situations in International Law, supra note 28, 140, 151. See also the Dissenting Opinion of Judge ad hoc Skubiszewski in the Case Concerning East Timor (Portugal v Australia), Judgment of 30 June 1995, supra note 58, 262.
73 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, supra note 69, 200.
74 A similar conclusion has been reached, to some extent, by Professor Gaja with regard to the duty to ensure compliance with obligations erga omnes. ‘Do States Have A Duty to Ensure Compliance with Obligations Erga Omnes by Other States?’ in M. Ragazzi (ed.), International Responsibility Today. Essays in Memory of Oscar Schachter (Leiden–Boston: Martinus Nijhoff Publishers, 2005) 31.
75 The existence in general international law of an obligation not to recognize acquisitions of territory by unlawful use of force is already maintained by I. Brownlie in International Law and the Use of Force by States, supra note 29, 418 et seq., and reaffirmed by V. Rodriguez Cedeno, ‘Sixth Report on Unilateral Acts of States’, supra notes, 11–12.
76 J. Crawford, ‘Multilateral Rights and Obligations in International Law’, 319 Recueil des Cours (2006) 473, considers that Chapter III of Part Two is a framework for progressive development, but that the obligation not to recognize ‘already reflects general international law’.