Christopher J. Makins, First Secretary of the British Embassy in Washington, concerning the general practice of the United States on the subject of succession to treaties by newly independent nations. Mr. Rovine's letter states in part:

While the Department of State strongly prefers to receive from a newly independent nation a statement of its intention to be bound by a particular multilateral treaty before we consider that nation a party to such treaty, we are generally prepared to accept as valid evidence of succession general declarations such as those frequently made to the United Nations SecretaryGeneral. Thus we are prepared to list as parties to multilateral agreements states which have made such general declarations. This would not be applicable, of course, in cases necessitating the consent of all parties to the agreement, or cases in which such succession would be incompatible with the object and purpose of the agreement. In addition, we examine these declarations closely to determine whether they contain reservations or other statements, such as clauses permitting termination in a fashion not permitted by the agreement, that may themselves be incompatible with the object and purpose of the agreement.

As for bilateral treaties, the United States normally attempts to make detailed arrangements with newly independent states with respect to our treaty relationships. Pending the conclusion of such arrangements, we have accepted general declarations as sufficient for purposes of continuing a particular treaty relationship, but again provided that the declarations contain no reservations or conditions inconsistent with the object and purpose of the agreement in question.

Dept. of State File No. P75 0070-2294.

The International Law Commission, at its twenty-sixth session held May 6 July 26, 1974, adopted the final text of its draft articles on succession of states in respect of treaties (GAOR: 29th Sess., Supp. No. 10 (A/9610 Rev. 1), pp. 16-107). The General Assembly, by Resolution 3315 (XXIX) approved December 14, 1974, invited member states to submit their written comments not later than August 1, 1975. By Resolution 3496 (XXX) of December 15, 1975, it called for a conference of plenipotentiaries in 1977 to consider an international convention on the subject.

Set forth below are the text of the draft articles adopted by the Commission and the comments submitted by the United States on May 5, 1975:

DRAFT ARTICLES ON SUCCESSION OF STATES IN RESPECT OF

TREATIES
PART I

GENERAL PROVISIONS

Article 1

Scope of the present articles

The present articles apply to the effects of a succession of states in respect of treaties between states.

Article 2
Use of terms

1. For the purposes of the present articles:

(a) "treaty" means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

(b) "succession of states" means the replacement of one state by another in the responsibility for the international relations of territory;

(c) "predecessor state" means the state which has been replaced by another state on the occurrence of a succession of states;

(d) "successor state" means the state which has replaced another state on the occurrence of a succession of states;

(e) "date of the succession of states" means the date upon which the successor state replaced the predecessor state in the responsibility for the international relations of the territory to which the succession of states relates;

(f) "newly independent state" means a successor state the territory of which immediately before the date of the succession of states was a dependent territory for the international relations of which the predecessor state was responsible;

(g) "notification of succession" means in relation to a multilateral treaty any notification, however phrased or named, made by a successor state expressing its consent to be considered as bound by the treaty;

(h) "full powers" means in relation to a notification of succession or a notification referred to in Article 37 a document emanating from the competent authority of a state designating a person or persons to represent the state for communicating the notification of succession or, as the case may be, the notification;

(i) "ratification," "acceptance" and "approval" mean in each case the international act so named whereby a state establishes on the international plane its consent to be bound by a treaty;

(j) "reservation" means a unilateral statement, however phrased or named, made by a state when signing, ratifying, accepting, approving or acceding to a treaty or when making a notification of succession to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state;

(k) "contracting state" means a state which has consented to be bound by the treaty, whether or not the treaty has entered into force;

(1) "party" means a state which has consented to be bound by the treaty and for which the treaty is in force;

(m) "other state party" means in relation to a successor state any party, other than the predecessor state, to a treaty in force at the date of a succession of states in respect of the territory to which that succession of states relates;

(n) "international organization" means an intergovernmental organization.

2. The provisions of paragraph 1 regarding the use of terms in the present articles are without prejudice to the use of those terms or to the meanings which may be given to them in the internal law of any state.

Article 8

Cases not within the scope of the present articles

The fact that the present articles do not apply to the effects of a succession of states in respect of international agreements concluded between states and other subjects of international law or in respect of international agreements not in written form shall not affect:

(a) the application to such cases of any of the rules set forth in the present articles to which they would be subject under international law independently of these articles;

(b) the application as between states of the present articles to the effects of a succession of states in respect of international agreements to which other subjects of international law are also parties.

Article 4

Treaties constituting international organizations and treaties adopted within an international organization

The present articles apply to the effects of a succession of states in respect of:

(a) any treaty which is the constituent instrument of an international organization without prejudice to the rules concerning acquisition of membership and without prejudice to any other relevant rules of the organization;

(b) any treaty adopted within an international organization without prejudice to any relevant rules of the organization.

Article 5

Obligations imposed by international law independently of a treaty

The fact that a treaty is not considered to be in force in respect of a state by virtue of the application of the present articles shall not in any way impair the duty of that state to fulfill any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.

Article 6

Cases of succession of states covered by the present articles

The present articles apply only to the effects of a succession of states occurring in conformity with international law and, in particular, the principles of international law embodied in the Charter of the United Nations.

Article 7

Non-retroactivity of the present articles

Without prejudice to the application of any of the rules set forth in the present articles to which the effects of a succession of states would be subject under international law independently of these articles, the present articles apply only in respect of a succession of states which has occurred after the entry into force of these articles except as may be otherwise agreed.

Article 8

Agreements for the devolution of treaty obligations or rights from a predecessor state to a successor state

1. The obligations or rights of a predecessor state under treaties in force in respect of a territory at the date of a succession of states do not become the obligations or rights of the successor states towards other states parties to those treaties in consequence only of the fact that the predecessor state and the successor state have concluded an agreement providing that such obligations or rights shall devolve upon the successor state.

2. Notwithstanding the conclusion of such an agreement, the effects of a succession of states on treaties which, at the date of that succession of states, were in force in respect of the territory in question are governed by the present articles.

Article 9

Unilateral declaration by a successor state regarding treaties of the predecessor state

1. The obligations or rights of a predecessor state under treaties in force in respect of a territory at the date of a succession of states do not become the obligations or rights of the successor states or of other states parties to those treaties in consequence only of the fact that the successor state has made a unilateral declaration providing for the continuance in force of the treaties in respect of its territory.

2. In such a case the effects of the succession of states on treaties which at the date of that succession of states were in force in respect of the territory in question are governed by the present articles.

Article 10

Treaties providing for the participation of a successor state

1. When a treaty provides that, on the occurrence of a succession of states, a successor state shall have the option to consider itself a party thereto, it may notify its succession in respect of the treaty in conformity with the provisions of the treaty or, failing any such provisions, in conformity with the provisions of the present articles.

2. If a treaty provides that, on the occurrence of a succession of states, the successor state shall be considered as a party, such a provision takes effect only if the successor state expressly accepts in writing to be considered.

3. In cases falling under paragraph 1 or 2, a successor state which establishes its consent to be a party to the treaty is considered as a party from the date of the succession unless the treaty otherwise provides or it is otherwise agreed.

Article 11
Boundary regimes

A succession of states does not as such affect:

(a) a boundary established by a treaty; or

(b) obligations and rights established by a treaty and relating to the regime of a boundary.

Article 12

Other territorial regimes

1. A succession of states does not as such affect:

(a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of any territory of a foreign state

and considered as attaching to the territories in question;

(b) rights established by a treaty for the benefit of any territory and relating to the use, or to restrictions upon the use, of any territory of a foreign state and considered as attaching to the territories in question.

2. A succession of states does not as such affect:

(a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of a group of states or of all states and considered as attaching to that territory;

(b) rights established by a treaty for the benefit of a group of states or of all states and relating to the use of any territory, or to restrictions upon its use, and considered as attaching to that territory.

Article 13

Questions relating to the validity of a treaty

Nothing in the present articles shall be considered as prejudicing in any respect any question relating to the validity of a treaty.

PART II

SUCCESSION IN RESPECT OF PART OF TERRITORY

Article 14

Succession in respect of part of territory

When part of the territory of a state, or when any territory, not being part of the territory of a state, for the international relations of which that state is responsible, becomes part of the territory of another state;

(a) treaties of the predecessor state cease to be in force in respect of the territory to which the succession of states relates from the date of the succession of states; and

(b) treaties of the successor state are in force in respect of the territory to which the succession of states relates from the date of the succession of states, unless it appears from the treaty or is otherwise established that the application of the treaty to that territory would be incompatible with its object and purpose or would radically change the conditions for the operation of the treaty.

Position in respect of the treaties of the predecessor state

A newly independent state is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of states the treaty was in force in respect of the territory to which the succession of states relates.

Participation in treaties in force at the date of the succession of states

1. Subject to paragraphs 2 and 3, a newly independent state may, by a notification of succession, establish its status as a party to any multilateral treaty which at the date of the succession of states was in force in respect of the territory to which the succession of states relates.