projects in the territory, the new state receives its territory with those benefits. On the other hand, if the territory as held by the predecessor state had a poorly-defined boundary as a consequence of a poorly-drafted treaty or was subject to an obligation to control its releases of water to assist irrigation in a downstream riparian State then the successor state acquires what the predecessor had, territory with badly defined boundaries or subject to an obligation to help the downstream state.

Failure to state the rules set forth in articles 29 and 30 would give rise to an assumption that the fact of succession could be used to support claims for territorial change or abolition of territorial rights. The result would be that an effort to codify international law would have resulted in undermining friendly relations among states. The United States, therefore, favours retention of articles 29 and 30.

Article 30, however, would benefit from simplification. The structure and drafting are complicated by a requirement in paragraph 1 that rights and obligations have to attach to a particular territory in the state obligated and a particular territory in the state benefited. This latter requirement seems both unnecessary and unduly confusing. If a land-locked state has transit rights to send certain commodities through a neighbouring state to a port, should it make any difference whether the commodities are grown or manufactured throughout the land-locked state or only in certain areas. Even if grown in a certain area the sale of the commodities benefits the state as a whole as well as the area directly concerned. Consequently, the United States would propose that this requirement be eliminated from the article.

PART VI

Miscellaneous Provisions

Article 31. Cases of military occupation, state responsibility and outbreak of hostilities

The provisions of the present articles shall not prejudge any question that may arise in regard to a treaty from the military occupation of a territory or from the international responsibility of a state or from the outbreak of hostilities between states.

The U.S. observations on the draft articles are in U.N. Doc. A/CN.4/275, March 8, 1974, pp. 31–36.

Provisional Application

In a letter dated May 24, 1974, addressed to Mr. Charles T. York, First Secretary (Economic), American Embassy London, Mr. J. H. Parotte, Executive Secretary of the International Wheat Council, inquired whether the Office of the Legal Adviser of the Department of State could deliver an opinion whether the Food Aid Committee, established under the 1971 Food Aid Convention (TIAS 7144; 22 UST 971; entered into force definitively for the United States July 24, 1971) could legally grant the Government of Italy and the European Eco

nomic Community, as such, additional extensions of time beyond June 30, 1974, for the deposit of their instruments of ratification (or the equivalent) of the Convention although the Convention might be regarded as having expired on that date. The Department of State is the depositary of the Convention.

Mr. Parotte wrote that the legal advisers of the EEC Commission felt that the Government of Italy should be required to ratify the Convention and deposit its instrument of ratification after June 30, 1974, notwithstanding that the Convention itself expired, as a legal instrument, on that date. Italy would have required two extensions of time: one for the Convention, and another for the Protocol extending the Convention. Mr. Parotte stated that "the Commission wants the 'moral' implications of [Italy's] declaration of provisional application to be translated into some binding and inescapable 'formal' obligation."

Charles Bevans, Assistant Legal Adviser for Treaty Affairs in the Department of State, wrote a memorandum on June 6, 1974, in response to Mr. Parotte's request. Mr. Bevans wrote, in pertinent part:

* * *

It is very difficult, if not impossible, to perceive any valid basis for considering the effect of the deposit of a declaration of provisional application as being limited to "moral implications." There does not appear to be any basis for such an interpretation either in the provisions of the Convention itself or in generally recognized treaty law and practice.

The precise intended effect of the deposit of a declaration of provisional application is nowhere specifically defined in the provisions of the Convention except in Article IX, which permits the deposit of a declaration of provisional application by "the European Economic Community and its member states and the government of any other country referred to in Article VI" and "any other government whose application for accession is approved." Following the provisions permitting such deposit, the Article provides that "The European Economic Community and its member states as well as any government depositing such a declaration shall provisionally apply this Convention and be provisionally regarded as parties thereto."

The expression "provisional application" is the subject of Article 25 of the Vienna Convention on the Law of Treaties which, although not yet in force, is the most recent consensus of the world community on the law of treaties. That Article is as follows:

Article 25

Provisional application

1. A treaty or a part of a treaty is applied provisionally pending its entry into force if:

(a) the treaty itself so provides; or

(b) the negotiating states have in some other manner so agreed.

569-769-75-17

2. Unless the treaty otherwise provides or the negotiating states have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a state shall be terminated if that state notifies the other states between which the treaty is being applied provisionally of its intention not to become a party to the treaty.

It will be observed that the above-quoted Article 25 makes no distinction between the effect of a treaty being provisionally applied and a treaty deemed to be fully in force other than to recognize the right, unless the treaty otherwise provides, of a state to notify the other states between which the treaty is being applied provisionally of its intention not to become a party to the treaty.

The expression "intention not to become a party to the treaty" in the last sentence of Article 25 of the Vienna Convention does not derogate from the effect of the provisions of the last sentence of Article IX of the Food Aid Convention, 1971, particularly because that sentence also contains the phrase "and be provisionally regarded as parties thereto."

In Article 2, paragraph 1(g) of the Vienna Convention on the Law of Treaties the word "party" is defined as meaning “a state which has consented to be bound by the treaty and for which the treaty is in force."

It appears that under the provisions of the Food Aid Convention, 1971 both the European Economic Community and governments which deposited declarations of provisional application are on the same level as to rights and obligations as Governments which deposit instruments of ratification or accession except for two minor exceptions:

1. Under the rule set forth in Article 25 of the Vienna Convention on the Law of Treaties the European Economic Community and governments depositing declarations of provisional application would have the right to give notification of intention not to ratify and be relieved on any subsequent obligation.

2. Article X of the Food Aid Convention, which provides in paragraph 1 that the deposit of instruments of ratification, acceptance, approval, conclusion or accession, or a declaration of provisional application by the European Economic Community and its member states and governments listed in paragraph 1 of Article VI is necessary to bring the convention into force on the dates specified therein, provides in paragraph 2 as follows:

(2) If this Convention does not enter into force in accordance with the provisions of paragraph (1) of this Article, the governments which by June 18, 1971, have deposited instruments of ratification, acceptance, approval, conclusion or accession or declarations of provisional application may decide by mutual consent that it shall enter into force among those governments that have deposited instruments of ratification, acceptance, approval, conclusion or accession, provided that the Wheat Trade Convention, 1971 is in force, or they may take whatever other action they consider the situation requires.

The mention in the first part of the above-quoted paragraph 2 of Article X of governments which have deposited "declarations of

provisional application" in connection with a decision that the Convention should enter into force, or the taking of other action, and the omission of any reference to governments which have deposited "declarations of provisional application" in the later part which refers only to "governments that have deposited instruments of ratification, acceptance, approval, conclusion or accession" would not appear to be of sufficient significance to justify any interpretation that governments depositing declarations of provisional application have no legal rights or obligations under the Food Aid Convention, 1971.

In view of these considerations, and in view of the fact that the deposit of an instrument of ratification of the Convention by a provisional party after the Convention has expired would be moot, the depositary would not regard as deposited any instrument of ratification submitted by a provisional party after such expiration until after receiving and considering views thereon of the governments concerned, even though an extension of time were granted. Dept. of State File No. P74 0101-2253.

§3

Amendment and Modification

Amendment Procedure

On December 16, 1974, the Senate gave its advice and consent to the ratification of the Amended Text to Article VII of the 1965 Convention on Facilitation of International Maritime Traffic (TIAS 6251; 18 UST 411; entered into force for the United States May 16, 1967). The Amended Text was adopted by the Intergovernmental Maritime Consultative Organization (IMCO) at London on November 19, 1973.

The purpose of the Amended Text is to provide a "tacit amendment" procedure for approving changes in the Annex to the Convention. The Annex sets forth the formalities, documentary requirements, and procedures on the arrival, stay, and departure of ships engaged in international voyages. These relate to such matters as the documents required for customs, immigration, and public health, as well as those sometimes required to satisfy military authorities, coast guards, transport ministries, police, and plant and animal quarantine. The Annex is not an integral part of the Convention and is subject to a separate amendment procedure. Article VII of the Convention listed two methods for amending the Annex. The usual procedure was for the IMCO Secretary-General to submit a proposed change to the Annex to all parties to the Convention and for them to indicate in writing their acceptance or refusal within one year. The proposed amendment would then come into force six months after a majority

of the parties gave positive acceptance. Alternatively, an amendment could be adopted at a conference requested by one-third of the parties present and voting. It was found that neither method permitted changes to be made in the Annex as quickly or efficiently as desired. The new "tact amendment procedure" under the Amended Text of Article VII involves three steps. First, a Contracting Government will circulate a proposed change to the Annex among the other Contracting Governments at least three months prior to a meeting of the IMCO Facilitation Committee. Second, that Committee will consider it and, if two-thirds of the parties present vote affirmatively, will adopt it. Third, the IMCO Secretary-General will then notify all Contracting Governments that the amendment will go into force at the end of 15 months unless within one year of its transmittal date one-third of the parties formally notify IMCO it is unacceptable to them. Those governments objecting to the change would not be bound by it but would be obligated to notify the Secretary-General of the differences between their own practice and the amended standard. The alternative method of amending the Annex at a conference by vote of a two-thirds majority will remain as before.

See Senate Exec. D, 93d Cong., 2d Sess., July 29, 1974; Senate Exec. Rept. No. 93-97, 93d Cong., 2d Sess., Dec. 13, 1974. The amended Text of Article VII provides:

(1) The Annex to the present Convention may be amended by the Contracting Governments, either at the proposal of one of them or by a Conference convened for that purpose.

(2) Any Contracting Government may propose an amendment to the Annex by forwarding a draft amendment to the Secretary-General of the Organization (hereinafter called the "Secretary-General"):

(a) Any amendment proposed in accordance with this paragraph shall be considered by the Facilitation Committee of the Organization, provided that it has been circulated at least three months prior to the meeting of this Committee. If adopted by two-thirds of the Contracting Governments present and voting in the Committee, the amendment shall be communicated to all Contracting Governments by the Secretary-General.

(b) Any amendment to the Annex under this paragraph shall enter into force fifteen months after communication of the proposal to all Contracting Governments by the Secretary-General unless within twelve months after the communication at least one-third of Contracting Governments have notified the Secretary-General in writing that they do not accept the proposal.

(c) The Secretary-General shall inform all Contracting Governments of any notification received under sub-paragraph (b) and of the date of entry into force.

(d) Contracting Governments which do not accept an amendment are not bound by that amendment but shall follow the procedure laid down in Article VIII of the present Convention.

(3) A conference of the Contracting Governments to consider amendments to the Annex shall be convened by the Secretary-General upon the request of at least one-third of these Governments. Every amendment adopted by such