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1972 draft articles. This is particularly true with respect to the articles in Part IV that deal with succession in the cases of the uniting and separation of states. Relationship between Draft Articles and Vienna Convention on
the Law of Treaties
The maintenance of the close relationship between the draft articles and the Vienna Convention on the Law of Treaties is an essential and important element. Obviously parallelism can be maintained only to a limited extent, but where there are common features, as in Articles 1 through 5, then, from the standpoint of the proper codification of international law, both the content and the language of the articles should be as near uniformity as possible. This should not mean on the other hand that articles of the Vienna Convention should be incorporated into the succession articles if there are sound reasons for not doing so. Non-Retroactivity (Article 7)
The United States Government considers that Article 7 of the draft on non-retroactivity, which is modelled, in part, on Article 4 of the Vienna Convention, is uncertain in its application and that there are sound objections to including this type of nonretroactivity provision in the convention. For example, the articles contain in Section 2 of Part III a series of provisions regulating the procedural aspects of succession when a newly independent state decides to maintain in effect a multilateral convention which had been applied in its territory prior to independence. These include Article 16 which provides for establishing status as a party to such a multilateral treaty“... by a notification of succession," Article 19 dealing with reservations, and Article 20 on consent to be bound by part of a treaty and choice between differing provisions. There does not seem to be any basis, in principle, for preventing a state which becomes newly independent prior to entry into effect of the draft articles from becoming a party thereto after their entry into effect and making use of these provisions in regulating its treaty relationships to the fullest extent possible in light of the situation as it exists at the time the articles become applicable to the successor state. Whatever other effects Article 7 may have, it certainly seems designed to make the draft articles less attractive to newly independent states. Boundary Regimes and Other Territorial Regimes (Articles 11
The changes in Articles 11 and 12 on boundary regimes and other territorial regimes are useful clarifications. The Government of the United States continues to consider these articles as a codification of international custom which makes a positive contribution to broader understanding of the principles of sovereign equality and the development of friendly relations among nations. Proposal Concerning “Multilateral Treaties of Universal Character" The United States has repeatedly expressed its support of the
freedom of choice principle embodied in the articles relating to newly independent states. Because of this belief that the newly independent state should have the right to determine for itself whether or not to become party to a multilateral treaty applicable in the territory prior to independence, the United States must oppose the proposal regarding multilateral treaties of universal character discussed in paragraphs 75 through 78 of the Report of the International Law Commission on the Work of its Twenty-Sixth Session.
The proposal is subject to a variety of objections. An important technical objection is the lack of any consensus as to what is meant by a "multilateral treaty of universal character.” The definition suggested is one“. .. which is by object and purpose of worldwide scale, open to participation by all states. Under this definition, a convention open to all members of the United Nations or of any specialized agency would not appear to qualify as a treaty of universal character. The definition would appear to raise aspects of the lengthy and inconclusive discussions regarding the nature of general multilateral treaties at the Vienna Conference on the Law of Treaties. What treaties have "worldwide scale" is also uncertain. The various commodity agreements, for example, have certain worldwide effects, but are of primary interest to the interested producing and consuming nations. In the aviation field, certainly the Warsaw and Chicago Conventions would meet the test but would the Geneva Convention on the International Recognition of Rights of Aircraft? The examples of treaties whose status would be uncertain under the definition are too numerous to require further illustration.
A more important problem is that the proposal could impose upon the newly independent states a host of obligations, including financial ones, that might be unknown or imperfectly known to it. The newly independent state could well be in a position where it could not undertake the legal research and analysis necessary to determine the nature and extent of its obligations under these treaties of universal character except over a period of several years. Nevertheless it could be held to have breached its obligations under such a treaty, however unknowingly or inadvertently.
The articles that the Commission has proposed avoid problems of the nature described and preserve the principle of freedom of choice by the newly independent state. This principle should be maintained. Notifications of Succession to Multilateral Treaties; Absence of
Provisions concerning Effects of Objections to Such Notifications
The United States, in its comments on the 1972 draft articles, expressed concern that the retrospective effect of a notification of succession to a multilateral treaty could give rise to severe practical problems. Consequently it supports the addition of paragraph 2 in Article 22 which provides that the operation of a multilateral treaty shall be considered as suspended between
the date of succession and the date of notification of succession. This is a solution which preserves the theoretical basis of the nature of succession to treaties but avoids the adverse consequences of carrying application of the theory to an extreme.
On the other hand, the United States wishes to renew its expression of concern that no provision is made in the draft articles regarding the effect of an objection to a notification of succession on the ground that such succession would be incompatible with the object and purpose of the treaty and notes that the problem has become more troublesome with the addition to Article 16 of the further qualification if the succession “would radically change the conditions for the operation of the treaty." These same qualifications appear in Article 17 on participation in treaties not in force at the date of the succession of states; in Article 18 on participation in treaties signed by the predecessor state subject to ratification, acceptance or approval; in Article 29 on newly independent states formed from two or more territories; in Articles 30, 31 and 32 on the effects of a uniting of states, in respect of treaties in force at the date of the succession of states, in respect of treaties not in force at the date of the succession of states and in respect of treaties signed by a predecessor state subject to ratification, acceptance or approval; in Articles 33 and 34 on succession of states in cases of separation of part of a state and the position if a state continues after separation of part of its territory; and in Articles 35 and 36, regarding the effects as regards succession of separation of part of a state on treaties not in force for the predecessor state to which that state had expressed its consent to be bound and on treaties signed by the predecessor state subject to ratification, acceptance or approval.
It would appear likely that objections to notifications of succession will be made on the basis of the qualifications common to the eleven articles mentioned in the preceding paragraph. Common sense would indicate that provision should be made for dealing with such objections. Two methods are available. One would be to write rules regarding the effect of objections into the draft articles. The Commission rejected the first course and possibly with good reason. It would be difficult to work out, in the abstract, rules for disposing of objections to notifications of succession in view of the myriad of differing treaty relationships that might be affected. Settlement of Disputes
The second course would be to set up a system for settling disputes that arise under the treaty. Any objections to a notification of succession could then be handled under the disputes settlement system. The Commission's report indicates that it gave some consideration to including provisions on disputes settlement in the draft articles but reached no decision due to lack of time. Instead the Commission offered, if requested, to consider the matter at its next session and prepare a report thereon. The United States would not consider it necessary for the Commission to reconsider the matter. Inasmuch as the present draft articles should be considered as having a close relationship to the Vienna Convention on the Law of Treaties, it would be appropriate to use the same procedures as are pro vided in the Vienna Convention for dealing with disputes regarding the validity of treaties.
Article 66 of the Vienna Convention provides for questions regarding jus cogens to be referred to the International Court of Justice and other questions to be decided by a conciliation procedure. As there are no issues in the present articles comparable in fundamental importance to determining the existence and content of a peremptory norm of international law, the conciliation procedure in the Annex to the Vienna Convention on the Law of Treaties could be incorporated in the present articles in substantially identical language. However, there are states which do prefer determination by judicial procedure or arbitration rather than by conciliation. There would not appear to be any substantial reason why states that preferred judicial or arbitral determination should not be able, under the convention, to use that system in disputes among themselves, while conciliation would be the procedure applicable in all other cases. To achieve this result the Annex to the Vienna Convention and Article 13 of the Convention for the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, could be combined. Part IV (Uniting and Separation of States)
The United States welcomes the changes that have been made in Part IV on the uniting and separation of states. The inclusion of new articles to deal with treaties not in force, or which have been signed by the predecessor state prior to the uniting or separation are valuable additions.
The combination of the 1972 articles on dissolution and on separation of states in one set of articles on the separation of states is a substantial improvement. The result is to eliminate the extremely difficult question of distinguishing between what is a dissolution of a state and what is a separation. The maintenance in force of treaties previously applicable in the dissolved territory, except with respect to any part of a state which becomes a new state in circumstances essentially of the same character as those surrounding the formation of a newly independent state, provides a reasonable compromise between the principle of continuity and the principle of freedom of choice. The exception, however, may give rise to difficulties in application. The draft articles do not lay down tests for determining what are the circumstances in which a new state should be considered to be "a newly independent state.” The single test would appear to be whether it had been a "dependent territory" within the meaning of Article 2. There have been a number of cases in which parts of a state that were formally described as integral parts of a state were treated as dependent territories. On the other hand there are cases in which the question would be extremely difficult to answer. The United States is inclined to the view that the circumstances in each case of dissolution that may arise in the future can be so diverse that any further
attempt to elaborate the definition would be self-defeating. The existence of this difficult problem, however, underscores the necessity for having an effective and impartial procedure for the settlement of disputes. Procedure by Which Work on Draft Articles Should be completed
Finally, the United States considers that the importance of the subject matter and the value of the draft articles support their consideration by a diplomatic conference at an early date. For comments of various member states of the U.N. concerning the draft articles, see U.N. Doc. A/10198, Sept. 11, 1975.
§ 3 Amendment and Modification
The Inter-American Treaty of Reciprocal Assistance (Rio Treaty), done September 2, 1947 (TIAS 1838; 62 Stat. 1681; 4 Bevans 559; entered into force for the United States December 3, 1948), contains no specific provision for amendment. A protocol of amendment signed by the United States and other Treaty parties on July 26, 1975 (S. Ex. J, 94th Cong., 1st Sess.), provides in Article VIII that the protocol “shall enter into force among the ratifying states when two-thirds of the signatory states thereof have deposited their instruments of ratification.” With respect to the remaining states it is to enter into force when they deposit their instruments of ratification.
The 1975 protocol also undertook to provide for future amendments to the Rio Treaty. The new Article 27 of the Rio Treaty provides:
This Treaty may only be amended at a special conference convoked for that purpose by a majority of the States Parties. Amendments shall enter into force as soon as the instruments of ratification of two-thirds of the States Parties have been deposited.
See post, Ch. 14, § 1, pp. 791-797. § 4 Invalidity, Termination and Suspension of
Termination or Suspension The Agreement on Trade Relations between the United States and Romania signed April 2, 1975 (TIAS 8159; 26 UST 2305; entered into force August 3, 1975), which provides for mutual extension of most favored-nation tariff treatment, provides in