Part 4 International transactions, Ch.14 Treaties, Effect of Treaties
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- Treaties, effect for third states — Governments
Effect of Treaties
Harv Research (1935), pt III, pp 918–37 Winkler, Verträge zu Gunden und zu Lasten Dritter im Völkerrecht (1932) Chailley, La Nature juridique des traités internationaux (1932), pp 240–328 Naurois, Les Traités internationaux devant les juridictions nationales (1934) Jessup, A Modern Law of Nations (1948), pp 132–8 McNair, BY, 9 (1928), pp 59–68 Mestre, Hag R, 38 (1931), iv, pp 264–302 Enriques, Rivista, 25 (1933), pp 24–37 Kelsen, RG, 43 (1936), pp 5–49 Kaira, Acta Scandinavica, 7 (1936), pp 39–67 Scrimali, ZöR, 21 (1941), pp 190–216 Kunz, AJ, 41 (1947), pp 119–26 McNair, Treaties, pp 111–19, 322–39, 534–5, 668–80 Verzijl, International Law in Historical Perspective, 6 (1973), pp 268–98 Elias, The Modern Law of Treaties (1974), pp 40–58, 88–100 Sinclair, The Vienna Convention on the Law of Treaties (2nd ed, (p. 1249) 1984), pp 83–98, 106–13 Restatement (Third), 1, pp 190–94, 213–15 See also literature cited at head of § 18 above, and, as to the treaty-making power, in §§ 597, 636.
The effect of a treaty upon the contracting parties is that they only1 are bound by its provisions and must perform it in good faith.2 As between the parties, the provisions of a treaty prevail over any inconsistent rule of customary international law, unless it constitutes a rule of ius cogens.3 A party may not invoke the provisions of its internal law as a justification for a failure to perform a treaty;4 this applies particularly to its failure to enact suitable laws to give effect to its treaty obligations.5 The general rule6 is that a treaty does not bind a party with retroactive effect, ie in relation to any act or fact which took place or any situation which ceased to exist7 before the date of the entry into force of the treaty for that party.
The duty to abide by the obligations of a treaty means that a party cannot liberate itself from the obligations of a treaty otherwise than on proper grounds.8 In normal circumstances such liberation requires the consent of the other parties.9 States still from time to time repudiate their treaties, but there is no References(p. 1250) doubt that such repudiation is a violation of international law unless it can be justified on one or other of the accepted grounds for securing release from the obligations to comply with the treaty. States accept this by invariably attempting to justify their repudiation by references to one or more of those accepted grounds.
Some treaties deal with a specified geographical locality, and in this sense might be said to apply only to that locality. Such would be the case with a treaty dealing with a particular island or other geographical area, or a boundary or a river; and in any case the parties’ intention that the treaty should be of limited territorial application may be established by the treaty itself, either by implication or expressly.1 A treaty, however, although one to which the notion of territorial application is relevant, will often contain no indication, either in the treaty or otherwise, of the parties’ intentions as to its territorial scope. In such cases the general rule is that the application of the treaty extends to the entire territory of each party.2 This probably includes overseas territories (such as colonies) which are under the sovereignty of the state; it is References(p. 1251) open to doubt whether it also includes other territories (eg protected states) for the international relations of which the state is responsible without having sovereignty over them.3
Such a rule causes difficulties for states comprising several territorial units which have some degree of autonomy,4 for example in legislating to enable effect to be given to a treaty: in such cases the state could not become a party until legislative action in several jurisdictions had been completed, and if in one jurisdiction the legislation was refused, the state could not become a party at all.5 To avoid these consequences the practice has developed of inserting in many treaties a special clause, often called a territorial application clause.6 Such clauses have various forms, but they all have the effect of enabling a state to limit the apparent territorial scope of the treaty. Thus the clause may enable a metropolitan territory to become a party to a treaty without involving any or all of its territories for whose international relations it is responsible. Such territories may be able to be brought within the scope of the treaty by a declaration made at the time of signature or ratification, or subsequently, or may later be able to withdraw from its scope in accordance with provisions laid down in the treaty,7 References(p. 1252) or the clause may stipulate that the provisions of the treaty shall apply to all a state’s territorial units unless the state makes a declaration excluding some or all of them,8 or may have the effect of relieving the state party to the treaty of the obligations of the treaty in matters which fall within the competence of the autonomous units.9 In the absence of some such clause, a state may be able to limit (or perhaps extend) the territorial scope of a treaty which is otherwise silent on the matter, by means of a declaration made at the time of signature or ratification, or a reservation (where one is permitted in accordance with the law relating to the making of reservations).10
Even with treaties to which the general notion of territorial application is not directly or fully relevant — eg a treaty with a territorially limited subject matter, or a treaty with a subject matter (such as a political alliance) which makes it hardly susceptible to a territorial application in the ordinary sense, or a treaty whose territorial subject matter is outside the territory of a state (such as a treaty relating to the high seas, or the moon) — the territorial limits of a contracting party may still be relevant, for example in cases of state succession.11
In some cases a treaty may impose on a state party obligations applying to its nationals even when they are outside the state’s territory. This may occur, for example in respect of treaties imposing obligations in respect of persons within a state’s jurisdiction, which can thus apply in relation to its nationals abroad.12
References(p. 1253) § 622 Effect of treaties upon individuals
The binding force of a treaty and its effects concern in principle the contracting states only, and not their nationals.1 This rule can, as has been said by the Permanent Court of International Justice,2 be altered by the express or implied terms of the treaty, when its provisions become self-executory (even, occasionally, as regards persons who are not nationals of the contracting state concerned).3 Otherwise, if treaties contain provisions affecting rights and duties of persons or bodies under the jurisdiction of the contracting states, each contracting state is bound to take such steps as are necessary, according to its internal law, to ensure that their rights and duties are consistent with the requirements of the treaty. According to the laws of some states, the official publication of a treaty may be sufficient for this purpose, but in other countries other steps are necessary, such as the enactment of a statute by Parliament.4
As treaties are binding upon the contracting states, changes in the government, or even in the form of government, of one of the parties do not, as a rule, affect the binding force of treaties.1 Thus, for instance, a treaty of alliance concluded by a state remains valid, even when the ministry changes. No state can avoid the obligations of a treaty merely because it was concluded by it under a previous government. When a monarchy becomes a republic, or vice versa, its treaty obligations References(p. 1254) normally remain the same. All such changes, important as they may be, do not of themselves alter the person of the state which concluded the treaty.2 If, however, a treaty provision essentially presupposes a certain form of government, then a change from such form makes such provision void.
A treaty1 may be amended2 by a further treaty between the parties; the amending treaty is subject to the normal rules for treaties regarding conclusion and entry into force, reservations and provisional application,3 unless the treaty itself otherwise provides.4 A treaty may also be amended by an oral agreement, or by a tacit agreement evidenced by the subsequent practice of the parties.5
References(p. 1255) There is normally no problem over the amendment of a bilateral treaty, the parties to which may at any time agree to its amendment, even without provision to that effect being made in the treaty — and even if the treaty expressly excludes amendment, since the parties can always agree to waive or amend that provision itself.
In the case of a multilateral treaty principle suggests that a proposal for its amendment requires the consent of all parties to the treaty6 (subject always to any different provision in the treaty itself). However, with treaties which have a large number of parties the purely practical difficulties of obtaining the consent of all of them are immense. However, alternatives are not without their difficulties. Thus, to allow a majority to amend the treaty would be to permit them to vary the treaty rights and obligations of a minority against their will or force them to cease being parties as the alternative to such an unacceptable variation of their rights and obligations; or again, to allow the amendment desired by the majority to be effective only between the states composing the majority would have the effect of creating a double set of treaty relations within the framework of what is ostensibly the same treaty. The significance attaching to the difficulties inherent in these various solutions varies from treaty to treaty. State practice in the formulation of amendment provisions for multilateral treaties discloses a variety of solutions;7 none of these alternatives to the requirement of consent from all parties can be said to reflect a rule of customary international law. The Vienna Convention provides that unless the treaty itself provides otherwise, an amendment is effective only as between the states party to the amending agreement.8 The adoption of such a residual rule is dictated largely by the References(p. 1256) overriding need, in the absence of an international legislature, to have a rule of sufficient flexibility to permit the adaptation of treaties to take account of developments affecting their subject matter, at the same time not infringing the sovereignty of those parties which, for whatever reason, do not become parties to the amending agreement.
The residual rules prescribed in the Vienna Convention require that any proposal to amend a multilateral treaty as between all the parties9 must be notified to all contracting states, each of which has the right to participate in the decision as to action to be taken on the proposal and in the negotiation and conclusion of any amending agreement.10 The amending agreement will not bind any state already a party to the original treaty which does not become a party to the amending agreement: as between such a state and another state which is a party to the original treaty and the amending agreement, their mutual rights and obligations are governed by the original treaty.11 Once the amending agreement is in force, a state which subsequently becomes a party to the treaty will, unless it expresses a different intention, be considered a party to the treaty as amended, and, in relation to any party to the treaty not bound by the amending agreement, a party to the unamended treaty.12
It may happen that two or more parties to a treaty may wish to modify its provisions as between themselves.13 The treaty may itself permit this. In other cases, there is a danger that inter se agreement between certain parties only might substantially affect the treaty regime as it applies to other states. To prevent this, the Vienna Convention14 allows such an inter se modification only if it does not affect the enjoyment by the other parties of their rights under the treaty or the References(p. 1257) performance of their obligations, and does not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole, and is not prohibited by the treaty.
In order to secure the due performance of a treaty, states have had resort to a variety of practices and procedures,1 including notably the following:
The practice of creating a charge upon some or all of the assets of a contracting state, and particularly upon its revenues, to secure payments due under a treaty was adopted, for instance,2 in Article 248 of the Treaty of Peace with Germany of 1919 and the ‘Dawes Agreement’ of August 1924,3 between the Reparation Commission and the German Government, relating to security for the payment by Germany of reparations.
Occupation of territory
As a means of securing the performance of a treaty this has been made use of,4 especially in connection with treaties of peace providing for the payment of a war indemnity, as well as for other reasons. Thus the Treaty of Versailles 1919,5 provided that ‘as a guarantee for the execution of the present treaty by Germany, the German territory situated to the west of the Rhine, together with the bridgeheads, will be occupied by Allied and Associated troops for a period of 15 years from the coming into force of the present treaty’.6
Treaties are often secured by the guarantee7 of other states not directly affected by them. Such a guarantee may involve accession8 to the treaty guaranteed, and References(p. 1258) may be a treaty in itself — namely, the promise of the guarantor, should occasion arise, to do what is in its power to compel the contracting party or parties to execute the treaty. In this category there must be included the various Minority Treaties concluded in and after 1919 and placed ‘under the guarantee of the League of Nations’.9
A growing number of treaties establish procedures whereby a check may be kept on the way in which states give effect to their obligations under the treaties in question. The procedures include the requirement to submit to an international body periodic reports on the implementation of the treaty by the reporting state;10 the obligation to submit to inspection of relevant facilities on their territories, to see whether treaty obligations are being complied with;11 the holding of periodic conferences to review the operation of the treaty;12 and the establishment of an international body whose functions include overseeing the implementation of the treaty.13 By subjecting the practice of states in areas covered by these treaties to such forms of external monitoring, observance by states of their treaty obligations is encouraged.
Retributive action under express treaty provisions
Some treaties contain their own procedures for taking measures designed to ensure that contracting parties observe their obligations under the treaty. Thus Article 19 of the United Nations Charter provides for a member which is in arrears in the payment of its financial contributions to the organisation to have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Commission of the European Communities has the power under the Treaty establishing the European Coal and Steel Community,14 in relation to a member state which is in breach of its obligations under that Treaty, to deprive it of certain benefits which it would derive from the Treaty and to authorise other member states to take against that state certain actions which would otherwise be prohibited. Under Article 14 of the Convention of 1931 for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs there is provision for References(p. 1259) an embargo upon imports in relation to a country which has exceeded the estimate of dangerous drugs to be exported to it.15
Similarly, the constitutions of many international organisations allow for the expulsion from or suspension of membership of member states in certain circumstances,16 a measure which often involves deprivation of rights under the treaty in question.
International enforcement action
Although also expressly provided for in the treaties in question, in a somewhat separate category are those actions which have in some respects the character of action on behalf of the international community. An example is the provision for various comprehensive measures of enforcement under Chapter VII of the United Nations Charter.17
Failure to perform a treaty will usually involve a state’s international responsibility which may be the subject of proceedings before an international tribunal, instituted by the aggrieved state. If a state is found to have an obligation under a treaty and to be in breach of it, the tribunal may declare that the breach entitles the other party to denounce the treaty, or it may direct the party in breach to make reparation, or to take action to remedy the breach, or may order the taking of certain interim measures to preserve the rights of the parties.18 In cases involving the International Court of Justice, the failure of a party to the proceedings to perform the obligations incumbent upon it under the Court’s judgment will entitle the other party to have recourse to the Security Council under Article 94 of the United Nations Charter. An increasing number of treaties contain a provision providing for recourse to a judicial tribunal in the event of a breach or a dispute as to the interpretation or application of the treaty.19
In addition to legal proceedings brought by one state against another, in some areas (particularly in the field of human rights) recourse may be had to an international tribunal by an individual whose treatment by a state is contrary to its obligations under a treaty to which it is a party.20
References(p. 1260) Retaliatory action
Apart from such steps as a state is under the treaty expressly entitled to take against a co-contracting state which fails to perform its treaty obligations, there is in certain circumstances a right for the aggrieved state to regard the breach of treaty obligations as justifying it in denouncing, or suspending the operation of, the treaty.21 Apart from that, breach of a treaty obligation is an international wrong, which gives rise to a right in the other party to take proportionate reprisals22 within the limits imposed by international law regarding the threat or use of force.
1 On the assignability of treaty rights see Mann, BY, 30 (1953), pp 475–8, and McNair, Treaties, ch 18; Higgins, The Development of International Law Through the Political Organs of the United Nations (1963), pp 320–25. As to effects for third states, see § 626.
2 Vienna Convention on the Law of Treaties 1969, Art 26. That provision has been referred to by the ILC as ‘a definition of the very essence of treaties’: YBILC (1982), ii, pt 2, p 38. And see Rosenne, Developments in the Law of Treaties 1945–1986 (1989), pp 135–79; and § 584, n 2.
3 See, eg Tokyo Suikosha v Tokyo Masonic-Lodge Association and Tokyo Masonic Association (1966), ILR, 53, p 1.
4 Vienna Convention, Art 27; and see § 21. ‘One point is certain: article 27 of the Vienna Convention pertains more to the regime of international responsibility than to the law of treaties … Another equally certain point is that article 27 contemplates only valid treaties which have been properly concluded. Where that is not the case, invalidity and not international responsibility is involved’: YBILC (1968), ii, pt 2, pp 38–9.
5 See generally § 21.
6 Vienna Convention, Art 28. See generally Binschedler-Robert, Recueil d’études de droit international en hommage à Paul Guggenheim (1968), pp 184–200; Nascimento e Silva, Hag R, 154 (1977), i, pp 271–91; and see also § 613, n 4. However, the parties may intend that a treaty should have retroactive effect, or this may be otherwise established: ibid. See also the Mavromatis Palestine Concessions Case (1924), PCIJ, Series A, No 2, p 34. The ICJ, in the Ambatielos case, stated that in general a treaty has not retroactive effect unless ‘there is any special clause or any special object necessitating retroactive interpretation’: ICJ Rep (1952), p 40. Even where a treaty has no retroactive effect, its provisions, if they reflect rules of customary international law, may still be applied to past events as a convenient expression of the customary rules: see, eg Golder Case (1975), ILR, 57, pp 201, 214–14; Belgium et al v Federal Republic of Germany (Young Loan Arbitration) (1980), ILR, 59, pp 495, 529. See also § 612 as to effects of a treaty prior to entry into force.
7 Thus a treaty may apply to a situation still continuing at the time of its entry into force, even though it began earlier: see the De Becker Case, YBECHR (1958–59), pp 230–35; Miserocchi v Società Agnesi (1971), ILR, 71, p 587; Carballal v Uruguay (1981), ILR, 62, p 240; Teti v Uruguay (1982), ILR, 70, pp 287, 295–6.
8 See §§ 635ff, 645ff. Note that a treaty’s obligations do not always become operative forthwith, but may be conditional upon the happening or non-happening of a certain event; for instance, Art 2 of the Rapallo Agreement between Germany and the USSR, 1922: LNTS, vol 16, p 248.
9 Thus when, in 1870, during the Franco-Prussian War, Russia declared its withdrawal from the provisions of the Treaty of Paris of 1856 which concerned the neutralisation of the Black Sea and imposed a restriction upon it in regard to warships in that sea, the UK protested. A conference of the signatory Powers of the Treaty of Paris was held, and although by a treaty signed in London in 1871, this Conference complied with the wishes of Russia and abolished the neutralisation of the Black Sea, it adopted in a Protocol the following declaration: ‘C’est un principe essentiel du droit des gens qu’aucune Puissance ne peut se délier des engagements d’un traité, ni en modifier les stipulations, qu’à la suite de l’assentiment des parties contractantes, au moyen d’une entente amicale’. (See Martens, N R G, 18, p 278.) Whatever the merits of this declaration, it certainly went too far in declaring that a state can only free itself from the obligations of a treaty by agreement with the other party, for there are other grounds on which a state may denounce a treaty: see §§ 647–55. When on 10 March 1935, and 7 March 1936, Germany unilaterally repudiated, respectively, its obligations under pt V (disarmament clauses) and Art 43 (demilitarisation of the Rhineland) of the Treaty of Versailles (see § 649, n 4, para 2) the Council of the League of Nations, in condemning Germany’s action, reiterated that declaration. See Off J (1935), p 551; Documents (1935), p 98; TS No 2 (1935).
1 Thus the Antarctic Treaty 1959, Art VI (see § 257) provides that it ‘shall apply to the area south of 60°S latitude …’. The agreement on Financial and Commercial Relations concluded in 1959 between the UK and the United Arab Republic (TS No 35 (1959)) was stated to apply only in respect of the Egyptian territory of the Republic, thereby excluding its Syrian territory. See also n 7, para 3.
For examples of various forms of treaty provisions relating to questions of territorial application see Blix and Emerson, The Treaty-Maker’s Handbook (1973), pp 156–67; Handbook of Final Clauses, UN Doc ST/LEG/6 (1957), pp 81–90 (this collection of final clauses has been up-dated by successive Annexes to Multilateral Treaties in respect of which the Secretary-General performs Depositary Functions, published periodically in the series ST/LEG/SERIES E, most recently E/8 (1990)).
2 Vienna Convention on the Law of Treaties (1969), Art 29. By ‘the entire territory of each party’ the ILC intended to cover all the land and appurtenant territorial waters and air space which constitute the territory of the state: see ILC Commentary (Treaties), Art 25, para (3) (YBILC (1966), ii, p 213). See also UN Juridical YB (1980), pp 208–9. The continental shelf over which a coastal state has certain rights would not seem to be properly regarded as part of its ‘territory’ for this purpose, since it is not within the sovereignty of the coastal state but only an area in respect of which it exercises sovereign rights for certain purposes (see § 316), but treaties often expressly apply to the continental shelf where the subject matter of the treaty makes it appropriate, and the context and purpose of a treaty’s provisions may lead to them being interpreted to the same effect.
3 As to the position of protected states in relation to treaties concluded by the protecting state, see § 82. The ‘Summary of Practice of the Secretary General as Depositary of Multilateral Agreements’ (1959, ST/LEG/7), paras 98–9, and ‘Succession of States in Relation to General Multilateral Treaties to which the Secretary General is the Depositary’ (1962, A/CN 4/150), suggest that the practice of the UN Secretariat is to regard the general rule to be that treaties apply not only to territories under the sovereignty of a state but generally to all territories for the international relations to which it is responsible. Discussion in the ILC, and comments of governments both before and at the Vienna Convention on the draft Article which eventually became Art 29 of the Vienna Convention revealed some difference of view whether it related at all to colonial or other dependent territories. As to the position of Trust Territories, see § 95; and as to Namibia (and, formerly, South West Africa), see § 88, n 2.
4 It may be noted that the ‘United Kingdom’ comprises the territory of Great Britain (that is England, Scotland and Wales) and Northern Ireland; the Channel Islands and the Isle of Man are not part of the UK, and, for purposes of treaties concluded by the UK, are included among the territories for whose international relations the UK is responsible. See Simmonds, CML Rev, 6 (1969), pp 156–69, ibid, 7 (1970), pp 454–65, and ibid, 8 (1971), pp 475–84, particularly, at p 483 of the last-mentioned article, the Foreign Office circular of 16 October 1950 (considered in Gillow Case (1986), ILR, 75, pp 562, 581–3). See also § 84, n 6.
5 See, eg the statement made on behalf of the UK in the UN General Assembly in 1962, Contemporary Practice of the UK (1962), II, pp 236–42. A treaty which by its terms applies to a state’s dependent territories imposes an obligation on the state to apply it in those territories, and it may be so applied even in the absence of local action to give effect to it: see Public Prosecutor and Customs Administration v Schreiber and Air France, ILR, 24 (1957), p 54.
6 The belief that such clauses conflict with the interests of colonial territories and could inhibit the ending of colonialism has led many states to resist the inclusion of such a clause in several multilateral conventions: see Higgins, op cit in next note. As to ‘federal State clauses’, see § 76.
7 See generally, McNair, Treaties, pp 116–19; Liang, AJ, 45 (1951), pp 108–29; UN Legislative Series, Laws and Practices Concerning the Conclusion of Treaties (1953), pp 121–5; Looper, BY, 32 (1955–56), pp 162–203; Fawcett, British Commonwealth in International Law (1963), pp 210–14; Hendry, Treaties and Federal Constitutions (1955); Doehring, ZöV, 27 (1967), pp 483–90; Sawer in International Law in Australia (ed O’Connell) (1965), pp 45–8; Higgins, The Development of International Law through the Political Organs of the United Nations (1963), pp 309–16. See also § 84.
The absence of a declaration extending the treaty’s application to a dependent territory, where a procedure for such declarations is provided for, goes to the root of the treaty’s applicability and failure by the state to draw attention to the absence of a declaration will not result in a court concluding that the treaty applies to the territory in question: Gillow Case (1986), ILR, 75, pp 562, 581–3. Although a dependent territory is subject to the authority of the metropolitan state, the European Commission of Human Rights has held it not to be within that state’s jurisdiction for the purpose of securing the application to such a territory of a treaty applying to all persons within the state’s jurisdiction, since the treaty in question contained a territorial application clause the procedures of which had not been used: Bui Van Thanh v United Kingdon, decided on 19 March 1990.
Where a state wishes to enter into a treaty commitment solely in relation to one of its dependent territories it may either authorise the territory to conclude the treaty on its behalf (see § 84, nn 15, 16), or may itself conclude the treaty solely in respect of the territory, as with the UK-USA Investment Incentive Agreement 1987 (TS No 45 (1988)) and the UK-USA Narcotics Co-operation Agreement 1987 (TS No 44 (1987)), concluded in respect of, respectively, Anguilla and Montserrat.
8 Eg Art 25 of the 1955 Protocol concluded at The Hague (UNTS, 478, p 371) amending the Warsaw Convention for the Unification of Certain Rules regarding International Air Transport 1929, on the application of which see Veuve Mackinnon v Air France (1964), ILR, 45, p 386; Art 66 of the Convention Establishing the Multilateral Investment Guarantee Agency 1985 (ILM, 24 (1985), p 1598).
9 See § 76.
10 Thus, in ratifying the Geneva Convention on the High Seas 1958, the UK declared that ‘ratification does not extend to the states in the Persian Gulf enjoying British protection’; and in ratifying the Covenant on Civil and Political Rights 1966 the UK stated that its ratification extended to dependent territories named in the instrument of ratification, which list of names did not include all the then UK dependent territories. The Federal Republic of Germany often made a declaration when signing or ratifying treaties that they applied to Berlin (see § 40, n 35ff). In ratifying the Convention on Privileges and Immunities of the IAEA, the UK entered a reservation (later withdrawn) as regards its application in any of the territories for whose international relations the UK was responsible other than the Channel Islands and the Isle of Man; the UK made a similar reservation on ratifying the European Convention for the Peaceful Settlement of Disputes. On ratifying the Convention on the Political Rights of Women, France entered a reservation as to the application of the Convention in certain territories, having regard to the religious customs and traditions existing there.
11 See § 60ff.
1 See generally McNair, Treaties, pp 78–110, 322–39. On the question whether the failure of nationals to invoke a treaty can bring about its desuetude see § 646, n 3.
2 The Court has held that the intention of the contracting parties may show that the treaty is self-executing and itself confers rights upon the subjects of one state against another state, enforceable in the former state’s national courts: see Advisory Opinion as to Jurisdiction of the Courts of Danzig (1928), Series B, No 15 (but note the differing constructions put upon this case by McNair, Treaties, pp 336–9). See also §§ 7, 375; McCandless v United States, ex rel Paul Diabo, AD, 4 (1927–28), No 363; and Confiscation of Austrian Property in Yugoslavia Case (1960), ILR, 40, p 175 (noted by Abel, ICLQ, 10 (1961), pp 344–6). The Court of Justice of the European Communities has held in numerous decisions that provisions of the treaties establishing the European Communities have direct effects for individuals in the member states: see § 19, nn 81, 82. See also § 442, n 5, as to decisions relating to the European Convention on Human Rights.
3 See Steiner and Gross v Polish State, AD (1927–28), No 287, in which it was held that a national of a state not a party to the Convention establishing the tribunal hearing the case could bring an action against Poland, one of the parties to the Convention. See also Glenn v Compania Cubana de Aviacion SA, ILR, 19 (1952), No 101. On the question of the effect of some treaties on nationals of states which are not parties to these treaties see generally Capitant, Les Traités de droit privé dans leur application aux nationaux des tiers états (1928); McNair, Treaties, ch 17.
4 As to the modes in which the provisions of treaties are made applicable in the national law of various states, see § 19; see also §§ 375, 636, above. As to the interpretation of treaties by municipal courts, and the extent to which they may refer to a treaty in interpreting a municipal enactment passed to give effect to it, see § 631, n 2.
1 But the outbreak of a rebellion may interfere with the performance of a treaty: see In re Nepogodin, ILR (1955), p 90. The recognition of a new government, particularly when it is a revolutionary government (see § 44), may necessitate an overhauling and confirmation (see § 659) of existing treaty relationships: see, for instance, the unratified Draft of Proposed General Treaty between the UK and the Russian Federal Soviet Socialist Republics in 1924, Cmd 2215. See also § 57, n 4; McNair, Treaties, pp 668–72, 676–80; O’Connell, State Succession in Municipal Law and International Law (1967), ii, ch 7; Harv Research (1935), pt III, pp 1045–55. See also ibid, pp 1066–77, on the effect of territorial changes.
2 See, eg Masinimport v Scottish Mechanical Light Industries Ltd (1976) SC 102; ILR, 74, p 559. Not to be confused with the effect of a change in the government is the effect of a change in international status upon treaties, as, for instance, if a hitherto full sovereign state becomes part sovereign, or vice versa, or if a state merges entirely into another, and the like. This is a case of succession of states, which has been discussed at §§ 60–70; see also § 654. As to the extent to which treaties are binding on rebel authorities, see McNair, Treaties, pp 676–80.
1 As to the amendment of a treaty before it has entered into force, see, as to the Olive Oil Agreement 1956 and the Protocol of Amendment 1958, UN Juridical YB (1974), pp 194–5.
2 See generally Scelle, Théorie juridique de la révision des traités (1936); Blix, ICLQ, 5 (1956), pp 447–65, 581–96. Jenks, BY, 14 (1933), pp 43–64; Hoyt, The Unanimity Rule in the Revision of Treaties (1959); Leca, Les Techniqeus de révision des conventions internationales (1961); Detter, Essays on the Law of Treaties (1967), pp 71–82. For examples of treaty provisions regarding the amendment or revision of the treaty in question, see Blix and Emerson, The Treaty-Maker’s Handbook (1973), pp 223–45; Handbook of Final Clauses, UN Doc ST/LEG/6 (1957), pp 130–52 (this collection of final clauses has been updated by successive Annexes to Multilateral Treaties in respect of which the Secretary-General performs Depositary Functions, published periodically in the series ST/LEG/SERIES E, most recently E/8 (1990)).
As to the ‘process, not exactly of amendment, but of what is known as emendation, ie adjustment to accommodate a different outlook’, see Beagle Channel Arbitration (1977), ILR, 52, pp 93, 157. The tribunal found it not an illegitimate proceeding as such, but one the acceptability of which in particular cases depends on how compelling are the reasons which support it and the degree of adjustment contained.
As to the significance of a provision that an agreement may be ‘revised’, see the Advisory Opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ Rep (1980), pp 73, 91–2.
To be distinguished from amendment procedures is the practice adopted in many treaties of providing for periodic review conferences. These are primarily concerned with reviewing the way in which a treaty has operated, rather than with adopting amendments: but, of course, a review of a treaty’s operation may reveal a need for its amendment. The line between review meetings and amendment conferences may not always be clear. For examples of various forms of review provisions see UN Charter, Art 109; Antarctic Treaty 1959, Art XII. 2(a); Treaty on the Non-Proliferation of Nuclear Weapons 1968, Art VIII.3. See generally Carnahan, AJ, 81 (1987), pp 226–30.
4 Vienna Convention, Art 39. For the case in which a treaty confers rights or obligations on third states, see § 626.
5 The ILC proposed an article dealing with modifications of a treaty by subsequent practice (draft art 38; YBILC (1966), ii, pt 2, p 236), but this was not adopted by the Vienna Conference on the Law of Treaties. That such subsequent practice may amend a treaty is demonstrated by the USA-France Air Transport Services Agreement Arbitration (1963), ILR, 38, pp 182, 248–55, and the Italy-USA Air Transport Arbitration (1965), ILR, 45, p 393. See also the Taba Award (1989), ILR, 80, p 224, for the acceptance by the parties of a situation not in conformity with the terms of a treaty requiring that certain boundary posts be inter-visible. Subsequent practice may sometimes help with the interpretation of a treaty (see § 632, n 20) rather than actually amend it, and the line between the two processes is not always sharp: in the second case just cited, it was held that a stricter standard had to be met for subsequent conduct to effect an amendment to a treaty than for it to affect the interpretation to be given to it (at p 419). Where the subsequent practice takes the form of a new treaty dealing with the same subject matter, different considerations apply: see §§ 590–1.
Distinct from the amendment of a treaty is the correction of errors in the text: see Vienna Convention, Art 79; Elias, The Modern Law of Treaties (1974), pp 218–22. For an example of a correction see the Certificate concerning the correction of the text of the 1977 Protocol to the Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality 1963: TS No 29 (1982). See also, as to the practice of the UN Secretary-General, UN Juridical YB (1976), pp 209, 214–16. Note also the incident concerning the Chinese text of the Genocide Convention, cited by Rosenne, Developments in the Law of Treaties 1945–1986 (1989), pp 436–43.
6 However, note that Art 39 of the Vienna Convention refers to a treaty being amended ‘by the parties’ and not ‘by all the parties’. The terminology adopted was deliberate: see ILC Commentary (Treaties), Art 35, para (4) (YBILC (1966), ii, pp 232–3). See generally works by Jenks, Hoyt and Blix cited at n 2.
7 For examples of treaty provisions see Blix and Emerson, and Handbook of Final Clauses, cited at n 2 above. Note also the terms of the Treaty Establishing the European Coal and Steel Community, Art 95 of which requires proposed amendments to the Treaty to be referred to the Court of Justice of the Community in order to establish their acceptability; and see Valentine, ICLQ, 11 (1962), p 568 for action under this provision.
8 Article 40. Note also the consideration given by the ICJ to the amendment effected by Art 35.5 of its statute to prior acceptances of the ‘optional clause’ in relation to the Court’s predecessor, the PCIJ: case Concerning the Aerial Incident of July 27, 1955, ICJ Rep (1959), pp 127, 135–9. See also Art 37 of the statute. However, so far as concerns amendments to constitutions of international organisations, note that the Vienna Conventions of 1969 and 1986 apply to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation without prejudice to any relevant rules of the organisation: Art 5 of each Convention.
9 The distinction is between the situation where the intention is that the treaty should be amended as between all the parties (even if in the event the amending agreement is only in force for some parties, owing to the failure of others to ratify it), and that in which it is intended ab initio to modify the treaty as between certain parties only: the latter is dealt with later in this Section.
10 Article 40.2. A state which is entitled to become a party to a treaty, but which has not yet done so, is not entitled to participate in negotiations about amendments (although it may be invited to do so), but is entitled to become a party to the treaty as amended: ibid.
It has not always happened that every party to a multilateral treaty has been consulted about amendments or participated in subsequent negotiations, but the ILC believed it to be the general rule that every party is entitled to be brought into consultation with regard to an amendment.
11 Article 40.4; see also §§ 590–1. Such a two-tier system of relations may give rise to problems in practice, and will be generally unsuitable for certain treaty provisions, such as those which provide a system of organisational control (eg the powers of a Secretariat).
12 Article 40.5.
13 Eg, the Naval Armament Agreement concluded in 1935 between the UK and Germany, modifying as between themselves pt V of the Treaty of Versailles 1919: see McNair, Treaties, pp 320–21. See also the Oscar Chinn Case, PCIJ, Series A/B, No 63, p 84; and the Frontier (Local Authorities) Award, ILR, 20 (1953), pp 63, 70–71, as to a variation agreed between France and Italy to the terms of the Treaty of Peace with Italy 1947.
14 Article 41. The parties are further protected from illegitimate interference with their position under a treaty by the requirement (in Art 41.2) that the modifying parties must notify the other parties of their intention to conclude the agreement and of the modifications which it effects. Article 41 prevails over Art 30.4, concerning the application of successive treaties relating to the same subject matter (see §§ 590–1).
1 See generally Heyland, Die Rechtsstellung der besetzten Rheinlande in Stier-Somlo’s Handbuch des Völkerrechts (1923), pp 37–74; Satow, Cambridge Historical Journal, i (1925), pp 295–318; Wild, Sanctions and Treaty Enforcement (1934); Frangulis, Théorie et pratique des traités internationaux (1936), pp 189–206; Wright, AS Proceedings (1932), pp 101–19.
For some obsolete means of securing the performance of treaties see vol I of 8th ed of this work, §§ 523–5. For a wide-ranging study of the performance of treaties by the USSR, covering many aspects of Soviet treaty practice, see Triska and Slusser, The Theory, Law and Policy of Soviet Treaties (1962). For some examples of treaty provisions establishing procedures for securing the enforcement of the treaties in questions, see Blix and Emerson, The Treaty-Maker’s Handbook (1973), pp 132–55.
2 See literature cited above, § 408.
4 See Robin, Des Occupations militaires en dehors des occupations de guerre (1913), particularly pp 471–82, 696–706, and other literature cited in bibliography preceding § 556.
5 Similarly, the preliminary Peace Treaty of Versailles 1871, stipulated that Germany should have the right to keep certain parts of France under military occupation until the final payment of the war indemnity of five milliard francs.
6 Article 428. See vol II of 7th ed of this work, § 277 (n). For the Agreement on the Evacuation of the Rhineland 1929, see TS No 16 (1931).
7 As to guarantees in general, see §§ 667–8.
8 See § 628.
9 See §§ 426–7.
11 This practice is a feature of some disarmament treaties, and of treaties concerned with safeguards on the use of atomic energy: see Blix, AFDI, 29 (1983), pp 37–58. See § 571. See also the Report of the Group of Qualified Experts on the Role of the United Nations in the Field of Verification 1990, especially paras 60–67 (UN Doc A/45/372, 28 August 1990), and GA Res 45/65 (1990).
12 See § 624, n 4 (fourth paragraph).
14 Article 88. Under Arts 90–92 of the Treaty the Commission may impose certain sanctions against individual enterprises to which the Treaty applies. The Commission has certain similar powers in relation to undertakings under the Treaty establishing the EEC, particularly in implementation of the rules of competition. Chapter VIII of the Havana Charter of the International Trade Organisation 1948 would have had the effect of releasing members from all or some of the obligations to the member who has acted in violation of the Charter. See Fawcett, YB of World Affairs (1951), p 287.
16 For a survey of these provisions see Jenks, BY, 22 (1945), pp 25–7; Nagendra Singh, Termination of Membership of International Organisations (1958); Handbook of Final Clauses, UN Doc ST/LEG/6 (1957), pp 74–80 (this collection of final clauses has been up-dated by successive Annexes to Multilateral Treaties in respect of which the Secretary-General performs Depositary Functions, published periodically in the series ST/LEG/SERIES E, most recently E/8 (1990)).
17 See Arts 39–50. The matter is treated more fully in vol II of this work. It may here be observed that those measures of enforcement which may be taken under ch VII of the UN Charter require that there first be a determination that there is a ‘threat to the peace, breach of the peace, or act of aggression’, and a breach of a treaty is perhaps unlikely, without more, to lead to such a determination. From sanction for the breach of a treaty there must be distinguished termination of advantages accruing under the treaty, or the nullity of acts constituting a violation of the treaty. The Preamble to the General Treaty for the Renunciation of War (which lays down that a state which breaks the treaty shall be deprived of its benefits) is an example of the former (see vol II of 7th ed of this work, p 52 (n)).
21 See § 649.
22 See ILC Commentary on Art 57 of the draft Articles on the Law of Treaties, para (1): YBILC (1966), ii, pp 253–4. As to reprisals, and counter-measures generally, see § 127, n 1. See also the consideration given to recourse to counter-measures as a response to breach of a treaty in USA-France Air Services Arbitration (1978), ILR, 54, pp 304, 335–41, and comment by Dutheil de la Rochère, AFDI, 25 (1979), pp 314, 330; Damrosch, AJ, 74 (1980), pp 785–807.