The Law and Procedure of The ICJ Treaty Interpretation - Hugh Thirlway

THE LAW AND PROCEDURE OF THE
INTERNATIONAL COURT OF JUSTICE 1960-1989*

PART FOUR
By HUGH THIRLWAY!
II. TREATY INTERPRETATION AND OTHER TREATY
POI NTS (continued)
Division B: Other Treaty Points
CHAPTER I: PRELIMINARY MATTERS
I. The pactum de contrahendo and the 'Obligation to Negotiate' 3
2. Privity of Contract: Private Law Agreements and Parallel Treaties 10
CHAPTER II: CONDITIONS OF THE FORMATION OF AGREE-
MENT
I. Private Law Analogies
( I) Offer and acceptance 12
(2) Consideration 16
(3) Intention to create legal relations 18
2. Forms of Conclusion of Treaties
(I) Are there legal requirements as to form? 18
(2) Ancient treaties 19
(3) Consent to be bound established by deposit of appropriate
instrument .. 2 I
3. Consent and Defects in Consent
(I) Error 22
(a) What kind of error is relevant? 22
(b) Error for which the complainant State was itself to
blame .. 25
(c) Error of fact and error of law 27
(2) Duress: the Fisheries Junsdiction cases 28
(3) Reservations 3I
Hugh Thirlway, 1993.
t Principal Legal Secretary, International Court of Justice.

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2
THE LAW AND PROCEDURE OF
CHAPTER III: THE TREATY IN ACTION
1. What is Meant by Saying that a Treaty is 'in Force'? .. 32
(I) The Barcelona Traction case .. 32
(2) The South West Africa case 34
(3) The Appeal relating to the Jun'sdiction of the ICAO Council 35
(4) The Nicaragua v. United States case 39
2. The Claiming of Rights Entails Submission to the Corresponding
Obligations 40
3. Implied Powers in Treaty 42
4. Third Parties and Treaties: pactum in favorem tertii .. 43
CHAPTER IV: CONDUCT INCONSISTENT WITH A TREATY
1. Duty not to Deprive a Treaty of its Object and Purpose 48
2. Breach of Treaty: the Relevance of Municipal Law 54
3. The Doctrine of Approximate Application following a Breach of
Treaty 59
4. Breach of Treaty and Implementation of Compromissory
Clauses .. 60
CHAPTER V: TERMINATION OF TREATIES
I. Termination of Treaties containing no Provision for Denunciation 63
2. Termination (or Suspension) of Treaty on account of Material
Breach 71
3. Termination of the Ground of Fundamental Change of Circum-
stances 75
(I) The Right ofPassage case 75
(2) The Fisheries Jurisdiction cases 77
(3) The Nicaragua v. United States case 8I
4. Failure of Consideration as a Ground for Termination of Treaties? 82
5. Procedural Requirements on Termination of Treaties
(I) Termination of treaty or 'right to invoke' for termination of
treaty? 85
(a) The Namibia case .. 86
(b) The ICAO case 86
(c) The Fisheries Jun'sdiction cases .. 87
(d) The WHO/Egypt Agreement case 89
(2) Survival of the compromissory clause 90
(a) The ICAO Appeal case 90
(b) The Fisheries Jun'sdiction cases .. 92
(c) TheHostagescase .. 92
6. Desuetude . . 94

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THE INTERNATIONAL COURT OF JUSTICE
3
WOTAN: 'Seid ihr bei Trost mit eurem Vertrag?'
Wagner: Das Rheingold, Scene 2.
In the series of articles which the present series is designed to continue, Sir
Gerald Fitzmaurice dealt, under the heading 'Other Treaty Points', with an
assortment of points that had arisen in connection with treaties during the
periods of the Court's work that he was examining; there were however insuf-
ficient of these for there to be any need for him to arrange them within any
particular analytical scheme. Some of these points, or points closely related to
them, have arisen again during the period now under review (which is, for
reasons explained in the previous article, I 1954-1989); in those years the
International Court has, as it happens, had occasion to deal with numerous
and more su bstantial points of treaty-law, so that a certain amount of schemati-
zation therefore seems appropriate. The points arising will be examined
broadly in the order in which they might arise in the course of the life of a
treaty, which is in fact also more or less the order in which provision is or might
have been made for them in the text of the Vienna Convention on the Law of
Treaties. It should however perhaps be emphasized that only points arisingin,
or in relation to, the Court's decisions during the period are examined; no
attempt is made to cover the whole field of treaty-law, or even the whole scope
of the Vienna Convention.
CHAPTER I:
PRELIMINARY MATTERS
1. The pactum de contrahendo and the Obligation to Negotiate
Commenting in his 1951 article on the South-West Africa advisory
opinion, Fitzmaurice concluded that in that decision
The Court found in effect than an obligation to conclude an agreement is really a
contradiction in terms and cannot exist. There may be an obligation to negotiate
(though the Court refused to imply one in the South-West Africa case), and in fact
there often are instances of countries undertaking to enter into negotiations on a
given subject, or with a given purpose. But such an undertaking does not and can-
not imply an undertaking, or an obligation, actually to reach agreement.
2
The Permanent Court had already observed, in the case concerningRailway
Traffic between Lithuania andPoland; that an obligation to negotiate did not
imply an obligation to reach agreement." The concept of an obligation to
negotiate has of course now acquired considerable importance in the field of
I This Year Book, 62 (1991), p" 2. Some points dealt with in opinions of Judge Lauterpacht in the period
1954--9 were examined by Fitzmaurice in his articles in the 1961, 1962 and 1963 Year Books.
2 This Year Book, 28 (1951), p. 26; Collected Edition, I, p. 67.
3 PCIJ, Series AlB, No. 42 (1931), p. 116.

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4
the law of the sea, following the Court's influential judgment in the North
Sea Continental Shelf cases in 1969. Some further study of the concept in
the jurisprudence antedating the period now under review may thus be
enlightening.
The basic difficulty is that if a pactum de contrahendo, an obligation to
conclude an agreement, defines the content of the agreement in specific
terms, specifying that the agreement will commit a party to perform or
refrain from certain acts, then the pactum will be legally a superfluity, as
being equivalent to a direct obligation to perform or refrain from those acts.
On the other hand, if the pactum merely imposes an obligation to see that a
certain result is secured, it will be virtually meaningless unless the modali-
ties of achievement of the result are capable of objective determination; if
these modalities can only be settled by agreement, the whole obligation
becomes in practice unenforceable.
The situation asserted by Poland to exist in theRailway Traffic case fell into
the first category: as a result, it was said, of an acceptance by Lithuania and
Poland of a recommendation of the League of Nations Council to negotiate in
order to re-establish peaceful relations, Lithuania had incurred an obligation
to open a particular transfrontier section of railway to traffic, since, it was
suggested, this reopening was essential to good inter-State relations."
There was in fact rather more to the Polish argument than appears from
the Permanent Court's judgment, since Lithuania did not conceal the fact
that its refusal to reopen the railway was intended to bring pressure to bear
on Poland to obtain a recognition of Lithuanian claims in another sphere;
and this was tantamount to a recognition that the reopening of the railway
formed part of any resumption of normal relations. It was therefore not
unreasonable to contend that, while the modalities of such reopening could
only be settled by agreement, there had been an acceptance in principle of
an obligation to reopen the line. However, as soon as an indeterminable,
subjective, element was admitted, the obligation became, as the Court in
effect found, unenforceable and therefore no more than a commitment to
bona fide negotiations.
Similarly in the South West Africa case, the reference in the Charter to
the agreements by which mandated territories might be brought within the
trusteeship system signified lack of obligation:
An 'agreement' implies consent of the parties concerned, including the manda-
tory Power in the case of territories held under Mandate (Article 79). The parties
must be free to accept or reject the terms of a contemplated agreement. No party
can impose its terms on the other party.
5
There was however an a fortiori aspect to the matter, since the relevant text
in the Charter (Article 77, paragraph 2)
4 PCI], Series C, No. 54, pp. 229, 370.
5 ICJReports, 1950, p. 139.

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5
moreover, presupposes agreement not only with regard to its particular terms, but
also as to which territories will be brought under the Trusteeship System."
It was in this light that the Court also rejected the contention that South
Africa as Mandatory was under an obligation to enter into negotiations with
a view to concluding a Trusteeship Agreement. Reference was made to
Article 80 of the Charter; after providing in paragraph I that nothing in
Chapter XII of the Charter was to be construed as in itself altering any
rights or the terms of any international instruments, Article 80 continues:
2. Paragraph I of this Article shall not be interpreted as giving grounds for delay
or postponement of the negotiation and conclusion of agreements for placing man-
dated and other territories under the trusteeship system as provided for in Article
77
For Judge De Visscher, this provision, coupled with the 'clear intent of
the authors of the Charter to substitute the Trusteeship System for the
Mandates System', signified that
the mandatory Power, while remaining free to reject the particular terms of a pro-
posed agreement, has the legal obligation to be ready to take part in negotiations
and to conduct them in good faith with a view to concluding an agreement. 7
In support of this Judge De Visscher cited the Railway Traffic case,
already discussed. The majority of the Court however rejected this view,
for the following reasons:
It has further been maintained that Article 80, paragraph 2, creates an obligation
for mandatory States to enter into negotiations with a view to concluding a
Trusteeship Agreement. But an obligation to negotiate without any obligation to
conclude an agreement can hardly be derived from this provision, which expressly
refers to delay or postponement of 'the negotiation and conclusion' of agreements.
It is not limited to negotiations only. 8
Taken alone, this reason is not entirely convincing: the obligation could be,
as Judge De Visscher pointed out, to negotiate 'with a view to concluding
an agreement'. The Court however continued:
Moreover, [Article 8o] refers to the negotiation and conclusion of agreements for
placing 'mandated and other territories under the Trusteeship System as provided
for in Article 77'. In other words, it refers not merely to territories held under
Mandate, but also to the territories mentioned in Article 77 (b) and (c). It is, how-
ever, evident that there can be no obligation to enter into negotiations with a view
to concluding Trusteeship Agreements for those territories.
9
Against this background, the Court in the 1969 judgment introduced an
obligation to negotiate with a view to agreement which was different in kind
6 Ibid.
7 Ibid., p. 188.
8 Ibid., p. 140.
9 Ibid.

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6
from any such obligation previously noticed in international law. In the
first place, in the Railway Traffic case, the obligation on Poland and
Lithuania resulted from their acceptance of a recommendation of the
League of Nations Council; it was therefore an obligation of a treaty-law
character, voluntarily undertaken, and the question was simply what pre-
cisely had been undertaken. The coastal States of the North Sea, however,
found themselves committed to such an obligation by the mere fact of their
relative geographical positions, as a matter of general customary law. The
Court suggested that
this obligation merely constitutes a special application of a principle which under-
lies all international relations, and which is moreover recognized in Article 33 of
the Charter of the United Nations as one of the methods for the peaceful settlement
of international disputes. 10
Some doubt may however be felt whether this is to the point. Certainly
there is an obligation under the Charter, and probably in general law, to
settle disputes by peaceful means, for example by agreement; certainly
agreement by States parties to a dispute settles the dispute and is conclusive
for their legal relations with regard to the matter in dispute; but the legally
'correct' solution of a legal dispute normally exists, or existed, indepen-
dently of the agreed solution. It is no mere quibble to point out that Article
33 applies in terms only to disputes which threaten international peace and
security; I I the point is that for all other disputes the law does not require
that they be settled, and settled by one of the means specified, but simply
that if they are to be settled, they must be settled peacefully, and thus by
one of the means specified. Thus the obligation to negotiate continental
shelf boundaries is more of an innovation in international law than the
Court was apparently willing to admit.
The point was taken by Judge Morelli in his dissenting opinion:
Now the obligation to negotiate an agreement for the apportionment of the conti-
nental shelf, according to the Court, is only a special application of a principle
which is said to underlie all international relations. There is, it seems, a general
obligation to negotiate which itself too is independent of the existence of adispute.
In my opinion, it is not at all possible to recognize the existence of any general
obligation to negotiate. A State which is asked by another State to enter into
negotiations with a viewto the conclusion of an agreement for the settlement of cer-
tain relations may, without doing anything contrary to law, refuse to do so, unless
there be a specific rule requiring negotiation.
As for Article 33 of the Charter, which is mentioned in the Judgment, that
Article refers only to the case of a dispute, and more precisely, to a dispute 'the
10 Ie] Reports, 1969, p. 47, para. 86.
II Rosenne (Developments in the Law of Treaties, 9 4 5 ~ 6 p. 263) questions whether 'this is an
identifiable category of international dispute', since 'theoretically any international dispute could easily
be brought within this classification in given political circumstances'.

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7
continuance of which is likely to endanger the maintenance of international peace
and security'. And, even within those limits, Article 33 by no means creates an
absolute obligation to seek. by means of negotiation, a solution to the dispute. The
obligation imposed by Article 33 is to seek the solution to a dispute by pacific
means; negotiations are but one of the pacific means which the aforesaid Charter
provision mentions as capable of being utilized. It is, in other words, an alternative
obligation; so that Article 33 would by no means be violated in the perfectly con-
ceivable hypothesis of a State's refusing to negotiate, while seeking a solution to the
dispute by other pacific means. 12
Furthermore, the 'correct' solution of a dispute normally exists indepen-
dently of, and is unaffected by, the conduct of the parties in the course of
reaching a settlement of it. The Court in the North Sea cases however
defined the content of the obligation to negotiate in these terms:
the parties are under an obligation to enter into negotiations with a view to arriving
at an agreement, and not merely to go through a formal process of negotiation as a
sort of prior condition for the automatic application of a certain method of delimi-
tation in the absence of agreement; they are under an obligation so to conduct
themselves that the negotiations are meaningful, which will not be the case when
either of them insists upon its own position without contemplating any modifi-
cation of it. 13
It seems possible to conclude from this that it is impossible that a continen-
tal shelf delimitation dispute could be settled by adopting the line that one
of the parties had proposed from the beginning. One is entitled to ask, why
not?
Another way of expressing the point already made above, as to the inde-
pendence of the 'correct' solution of a dispute from the contentions of the
parties and from the terms agreed in its settlement, is that if no settlement
is agreed, and a tribunal is entrusted with the task of judging the matter, it
will apply criteria other than the terms of the agreement which might have
been reached. Not so in matters of shelf delimitation: here the tribunal's
decision is, in a very real sense, 'an alternative to the direct and friendly
settlement of such disputes between the parties'. The tribunal's decision is
thus intended to be a substitute for an agreement; or rather, will be an
agreement at the second degree-the agreement to confer jurisdiction being
an agreement to accept a future settlement handed down, in place of an
immediate settlement achieved by negotiation.
The relationship between the 'law' and the 'agreement', in questions in
dispute between States, is thus reversed: normally, when States agree on
the settlement of a dispute, the terms of the agreement are dictated by, or at
least closely related to, their understanding of what the legal position is-
what a tribunal would decide if seised of a dispute. In continental shelf
l2 ICJ Reports, 1969, p. 2.16, para. 21.
13 Ibid., P' 47.

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8
delimitation, on the other hand, the tribunal has virtually to determine
what the two States would have agreed on, had they patiently negotiated
toward an 'equitable solution', dictated by 'equitable principles'. 14 As was
suggested in the first of this series of articles, the reference to equity is tan-
tamount to a reference to the presumed ideas of the parties as to fairness. 15
The effective substitution of the tribunal for the parties emerges in particu-
lar from the 1982 judgment in the case of the Continental Shelf (Tunisial
Libyan Arab Jamahiriya) , to be examined in a moment.
It must, it is suggested, be concluded that the obligation defined in the
North Sea cases is, unlike that in the Railway Traffic case, an obligation to
reach agreement; if created itself by treaty it could properly be called a pac-
tum de contrahendo, and if a pactum may be imposed by a rule of custom-
ary law, the definition may stand.
In subsequent decisions of the full Court on continental shelf delimi-
tation, negotiation as an element of the applicable law has faded somewhat
into the background. The element of agreement however remains strong.
In the Tunisia/Libya case, the Court based its delimitation to a large extent
on a line which resulted de facto from the meeting of concessions granted
by the two parties. 16 In explanation of this aspect of its decision, the Court
had this to say:
I t should be made clear that the Court is not here making a finding of tacit agree-
ment between the Parties-which, in view of their more extensive and firmly main-
tained claims, would not be possible-nor is it holding that they are debarred by
conduct from pressing claims inconsistent with such conduct on some such basis as
estoppel. The aspect now under consideration of the dispute which the Parties
have referred to the Court, as an alternative to settling it by agreement between
themselves, is what method of delimitation would ensure an equitable result; and it
is evident that the Court must take into account whatever indicia are available of
the line or lines which the Parties themselves may have considered equitable or
acted upon as such if only as an interim solution affecting part only of the area to be
delimited. 17
The Court could hardly have made it clearer that it was acting, not on the
basis of an agreement which the parties were deemed to have made, but on
the basis of the agreement which the parties could, or should, have made,
'4 As has been very cogently pointed out by Weil, the theoretical underpinning of the successive
judgments on delimitation is that an agreed delimitation and a judicial delimitation would be identical in
effect. This is demonstrably not so: States may take into account factors which are legally (or in equity!)
irrelevant, for example by reducing a claim to continental shelf in exchange for concessions in another
domain; yet such agreed delimitations are perfectly valid. See Perspectives du droit de la delimitation
maritime (1988), pp. 118-23.
'5 This Year Book, 60 (1989), p. 62.
16 It turned out subsequently that the information before the Court was incomplete or misleading,
and that the concessions did not interlock as tidily as first appeared: see the Application for Revision and
Interpretation of the 1982 judgment; but this does not affect the point here discussed.
'7 ICJ Reports, 1982, p. 84, para. 118 (emphasis added).

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THE INTERNATIONAL COURT OF JUSTICE 9
presumably in fulfilment of the pactum de contrahendo to which, on the
authority of the North Sea judgment, they were subject. 18
The Chamber dealing with the Gulf of Maine case also emphasized the
aspect of agreement, and the need for negotiation; it played down even
such elements of positive, specific, rules of law as were discernible in the
references to equity in the jurisprudence. First in respect of the conven-
tional regime of Article 6, paragraphs 1 and 2, of the 1958 Geneva Conven-
tion on the Continental Shelf, it stated:
The principle of international law stated in the first sentence of each of the two
paragraphs is simple, yet its importance must not be underestimated. It must not
be seen as a mere 'self-evident truth'. The thrust of this principle is to establish by
implication that any delimitation of the continental shelf effected unilaterally by
one State regardless of the views of the other State or States concerned is in inter-
national law not opposable to those States. The same principle also entails appli-
cation of the related rules as to the duty to negotiate with a view to reaching
agreement, and to do so in good faith, with a genuine intention to achieve a positive
result. 19
As to customary law, it also insisted that 'the principle of international
law-that delimitation must be effected by agreement' was one of the 'prin-
ciples already clearly affirmed by customary international law' .20 It defined
the first element of what it regarded as the 'fundamental norm' as follows:
No maritime delimitation between States with opposite or adjacent coasts may
be effected unilaterally by one of those States. Such delimitation must be sought
and effected by means of an agreement, following negotiations conducted in good
faith and with the genuine intention of achieving a positive result. Where, how-
ever, such agreement cannot be achieved, delimitation should be effected by
recourse to a third party possessing the necessary competence. 21
Judge Gros, dissenting, however, having summed up the law as defined by
the Chamber (following in this the 1982 Convention on the Law of the Sea)
as 'agreement + equity', considered that 'As the concept of agreement has
nothing to do with the work of the judge, only equity remains'. 22
In the 1985 decision of the Court in the case concerning the Continental
Shelf (Libyan Arab Jamahinya/Malta) the Court indicated that it had a
duty to consider whether, as in the Tunisia/Libya case, there were any
'indicia . . . of the [delimitation] line or lines which the Parties themselves
may have considered equitable or acted upon as such', 23 but did not find
18 The 1982 United Nations Convention on the Law of the Sea has not of course been overlooked,
but since the present study is the Court's development of the 'obligation to agree', the Convention may
be relegated to a footnote. The provisions of Articles 74 and 83 of the Convention on delimitation of the
EEZ and the continental shelf were inspired by the North Sea decision; they each provide for delimi-
tation to be 'effected by agreement on the basis of international law, as referred to in Article 38 of the
Statute of the International Court of Justice, in order to achieve an equitable solution'.
19 ICY Reports, 1984, p. 292, para. 87.
20 Ibid., pp. 292-3, para. 90.
21 Ibid., p. 299, para. 112(1).
22 Ibid., p. 377, para. 27.
23 ICY Reports, 1985, p. 29, para. 25, quoting ICj Reports, 1982, p. 84, para. 118.

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10
any; otherwise the decision does not add any significant material on the
point now under discussion.
It appears, in conclusion, that international law has acquired, on the
impulsion of the North Sea decision, and now of the United Nations Con-
vention on the Law of the Sea, a genuine pactum de contrahendo. It
escapes the dilemma posed at the beginning of this section: the solution to
be arrived at by negotiation and agreement (the delimitation) is not so
clearly predefined that the intermediate obligation to agree becomes mean-
ingless ;24 yet the obligation can be judicially enforced by reference to the
amorphous concept of equity-and indeed there is some hint in the Gulf of
Maine decision of a duty to seek judicial settlement. The duty to negotiate
and agree is also a particularly pressing one because so long as it is not com-
plied with, it is impossible to define, or, in principle, to exploit.:" part of
the patrimony of a coastal State, which appertains to it ipso facto and ab
initio. 26
2. Prioity of Contract: Priuate Law Agreements and Parallel Treaties
The discontinuance of the original proceedings instituted by Belgium
against Spain in the Barcelona Traction case, and the subsequent com-
mencement of fresh proceedings on the same grounds, gave rise to ques-
tions similar to those which arose in the Anglo-Iranian Oil Co. case, and
which were discussed by Fitzmaurice in his 1957 article."? It was contended
by Spain that there had been an understanding between the parties-that is
to say, between the two States-that the discontinuance of the first pro-
ceedings would be such as to operate as putting a final end to the claim, so
that no fresh proceedings could be brought based upon it. This contention
was based on
the fact that when, after the original proceedings had been started, the representa-
tives of the Belgian interests concerned approached the representatives of the
Spanish interests with a view to re-opening negotiations, they were met with a firm
refusal to do so unless the case before the Court were first brought to a definite end;
that a Belgian offer for a suspension of the proceedings was rejected as insufficient,
and a 'final withdrawal of the claim' was demanded; that the Belgian representa-
tives thereupon undertook to request their Government to effect a final discon-
tinuance of the proceedings; that it was perfectly well understood on the Belgian
24 On this, cf. Sir Robert Jennings, 'The Principles Governing Marine Boundaries', Staat und Vol-
kerrechtsordnung (Festschrift fur Karl Doehring) (1989), p. 402.
25 The dictum in the North Sea case that 'if the coastal State does not choose to explore or exploit the
areas of shelf appertaining to it, that is its own affair, but no-one else may do so without its express con-
sent' (Ie] Reports, 1969, p. 22, para. 19) must have had a certain freezing effect on exploration of unde-
limited shelves. In the Aegean Sea case, however, the Court was not prepared to inhibit by provisional
measures purely exploratory activities by one State on what might prove to be another State's area of
shelf: Ie] Reports, 1976, p. II, para. 33; and in the Tunisia/Libya case the Court was influenced in its
delimitation by the existence of concessions granted.
26 North Sea Continental Shelf, Ie] Reports, 1969, p. 22, para. 19.
27 This Year Book, 33 (1957), pp. 238 ff; Collected Edition, I, pp. 372 ff.

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THE INTERNATIONAL COURT OF JUSTICE II
side that the Spanish side meant and assumed that the discontinuance would oper-
ate as putting a final end to the claim, or at any rate to any further right of action;
and that the Spanish representatives would not have agreed to negotiate on any
other basis, nor the Respondent Government to refrain from objecting to the dis-
continuance under Article 69, paragraph 2, of the Rules of Court.
28
The Court first dealt with the problem by considering whether, if such
an agreement was reached, it was reached between persons capable of bind-
ing their respective Governments:
In order that the Governments on either side should in any way be committed by
these exchanges, it would be necessary to show that the representatives of the pri-
vate interests acted in such a manner as to bind their Governments. Of this there is
no evidence: indeed on the Spanish side the apparently very cautious nature of the
contacts between the authorities and the private interests negatives the possibility
... In the circumstances, the Court sees no reason to depart from the general
rule that, in relation to an understanding said to exist between States parties to a
litigation before it, and to affect their rights in that litigation, it can only take
account of the acts and attitudes of governments or of the authorized agents of
governments; and, in the present case, the Court can, at the governmental level,
find no evidence of any such understanding as is alleged by the Respondent. 29
The fact however remains that there was a discontinuance by the Belgian
Government, not objected to by the Spanish Government, so that some
degree of agreement must have existed at the international level. The situ-
ation thus resembled that asserted by the United Kingdom to exist in the
Anglo-Iranian Oil Co. case; as Fitzmaurice explained, the United Kingdom
argument
did not so much allege that one and the same agreement ... was simultaneously
both a private contract and an international treaty, as that there were in effect two
agreements, one a private contract between the Iranian Government and the Com-
pany, and the other a tacit agreement between Iran and the United Kingdom, the
terms of which were that, in consideration of the proceedings before the League
Council, the first agreement would be observed.v"
Such international agreement could of course have been constituted by the
mere fact of discontinuance coupled with lack of objection by the respon-
dent; but the Court seems to have considered that, even at governmental
level, there was some element of agreement even before the notice of dis-
continuance was filed. Explaining that, as regards any extinctive effect of
discontinuance, it found the various exchanges 'wholly inconclusive', the
Court observed:
I t seems that the Parties were deliberately avoiding a problem they were unwilling
to come to grips with, lest by doing so they should shatter the foundation for their
interchanges. The Respondent Government must have realized that an immediate
28 ICY Reports, 1964, p. 22.
29 Ibid. pp. 22-3.
3 This Year Book. 33 (1957), p. 239; Collected Edition, I, p. 373; emphasis original.

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12
refusal would result from any official request that the Applicant Government, in
discontinuing the current proceedings, should definitely renounce, or undertake
that it did renounce, all further right of action. As far as the Applicant was con-
cerned, if it did not intimate that it reserved the right to bring further proceedings,
should the negotiations fail, it equally avoided suggesting that it renounced that
right. The desire felt on the Spanish side not to negotiate whilst proceedings were
actually in progress before the Court, involving injurious charges against Spanish
authorities and nationals, was fully met by the discontinuance effected, and
nothing more was needed for that purpose.>'
The Barcelona Traction case thus demonstrates that, while an inter-
national agreement has in principle to be concluded on each side by a 'per-
son ... considered as representing a State for the purpose', in terms of
Article 7, paragraph I, of the Vienna Convention, contracts and agree-
ments between private interests may lead to a subsequent inter-State agree-
ment endorsing or referring to the terms thus privately agreed.V
CHAPTER I I:
CONDITIONS OF THE FORMATION OF AGREEMENT
I. Priuate Law Analogies
( I) Offer and acceptance
In general, the formality of a treaty as an instrument for embodying or
recording consent renders superfluous any enquiry into the steps by which
its precise terms were arrived at. In private law, a contract may, particu-
larly in commercial matters, come into existence as the culmination of a
series of exchanges of offers and counter-offers, and its terms may have to
be ascertained by reference to a number of successive communications,
which may be partly written, and partly oral or constituted by conduct,
between the parties. On the international level, while such exchanges may
very well have taken place in the course of negotiation, it is normal for the
terms so agreed to be embodied in a formal treaty-instrument, and it is this
and this alone which will, save in exceptional cases, define the extent of the
agreement. 33 Thus the familiar common-law concepts of offer and accept-
ance, the backbone of the law of contracts, usually have no role to play in
the law of treaties.
3
1
IC] Reports, 1964, p, 23 (emphasis added),
3
2
This does not appear to be the situation contemplated by Article 8 of the Vienna Convention
('Subsequent confirmation of an act performed without authorization'), which was aimed more at the
case of a diplomatic agent going beyond his powers: see the ILC Commentary, A/CONF.39/11/Add.2,
pp. 13-14.
33 Previous exchanges may well be significant, as travaux preparatoires , for purposes of interpret-
ation of the treaty ultimately concluded; but it is not normally necessary or appropriate to examine them
to see whether they themselves define and constitute an agreement between the parties.

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However, in the case concerning Monetary Gold removed from Rome in
1943, the Court had to deal with an agreement in the nature of a treaty con-
stituted by the acceptance of an offer, and the problem of whether the
acceptance was valid and subsisting. The Governments of France, the
United Kingdom and the United States, having agreed to refer to arbi-
tration the question whether the monetary gold which was at stake
belonged to Albania or to Italy, made a further joint Statement (the Wash-
ington Statement of 25 April 1951), the effect of which was described by
the Court as follows. The three Governments stated that they agreed
that, if the opinion of the Arbitrator should be that Albania had 'established a claim
under Part III of the Act' to the gold in question, 'they will deliver the gold to the
United Kingdom in partial satisfaction of the judgment in the Corfu Channel case
unless within 90 days from the date of the communication of the Arbitrator's
opinion to Italy and Albania' either of the following two conditions should be ful-
filled: either Albania made an application to the Court for the determination of the
question whether it was proper that the gold should be delivered to the United
Kingdom; or Italy made an application to the Court for the determination of the
questions whether by reason of any rights which she claimed to possess as a result
of the Albanian law of January 13th, 1945, or under the provisions of the Italian
Peace Treaty, the gold should be delivered to Italy rather than to Albania and
whether the claim of the United Kingdom or of Italy to receive the gold should
have priority, if this issue should arise. The three Governments accepted as
respondents the jurisdiction of the Court for the purpose of the determination of
such applications by Italy or by Albania or by both, and undertook to conform with
any decisions of the Court. 34
The case came before the Court because Italy took advantage of the
opportunity so offered to it.
Italy, in accordance with the Statement and within the prescribed time-limit,
submitted an Application to the Court in which she formulated two claims with
regard to the gold, but, instead of presenting a Memorial on the merits within the
time-limit fixed for that purpose by the Court, she raised an issue as to the Court's
jurisdiction to deal with the first claim in her Application. The question of the jur-
isdiction of the Court was first raised in the form of a 'preliminary question'. 35
The Court analysed the resulting situation specifically in terms of offer
and acceptance:
The three Governments which signed the Washington Statement made a collec-
tive offer in respect of the present proceedings, and Italy accepted that offer. 3
6
However, after such acceptance, Italy challenged the jurisdiction of the
Court, on the grounds that the proceedings were in reality directed against
Albania, which was not a party to them. The effect aimed at-and in the
34 ICY Reports, 195+, p. 26. The Washington Statement could, alternatively, be regarded as a pac-
tum in favorem tertii; see Chapter II I, section +.
35 Ie; Reports, 195+, pp. 26-7.
3
6
Ibid.,p.28.

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14
event achieved-was to prevent the three Governments from implementing
their agreement to hand over the gold to the United Kingdom, because the
condition precedent (inaction by both Albania and Italy) was not fulfilled;
and at the same time to avoid a decision by the Court ruling against Italy's
claims."?
The reaction of the United Kingdom-" was of course to suggest that as a
result of Italy's action in challenging the jurisdiction, its original act of seis-
ing the Court could no longer be regarded as an acceptance of the offer con-
stituted by the Washington Statement, with the consequence that, as the
United Kingdom expressly submitted,
the United Kingdom is entitled by the Tripartite Washington Statement to receive
a transfer of the gold in the same manner as if Italy, as well as Albania, had not
applied to the Court under the relevant provisions of the Statement. 39
Specifically, again in terms of the United Kingdom submissions, the Court
was asked to declare that
(1) in view of Italy's objection on the ground of the alleged lack of competence
of the Court, her Application to the Court of May r oth 1953,
(a) does not conform to the conditions and intentions of the Tripartite Wash-
ington Statement of April 25th, 1951, or alternatively
(b) has been in effect withdrawn or cancelled by Italy, and is therefore invalid and
void;
(2) Italy is, in the circumstances, to be deemed not to have made any appli-
cation to the Court within the meaning and for the purpose of the Tripartite Wash-
ington Statement. 4-0
The complaint of the United Kingdom was ultimately that Italy had not
kept her side of the bargain. The agreement formed by Italy's acceptance of
the offer contained in the Washington Statement was, at the time of the
proceedings, executory on the side of the three Governments, but executed
(in Italy's contention) on the side of Italy. Thus it could not be argued that
I taly was in breach of the agreement, and that the gold could be released to
the United Kingdom on an argument of adimpleti non est adimplendum. It
was necessary to contend that there had been no agreement, because Italy's
application did not conform to the conditions of the Washington State-
ment, or that, having been in effect withdrawn, it could be treated as never
having been made. The difficulty with the latter argument is that, if Italy's
application amounted to compliance with the conditions of the Washington
Statement when it was made, an international agreement came into exis-
37 As a result, the gold remained in a sort of legal limbo until 1991 when resumption of diplomatic
relations between Albania and the United Kingdom made it possible for an all-round settlement of
claims to be negotiated: see the Anglo-Albanian Memorandum of Understanding signed at Rome on 8
May 1992, and d. Revue generale de droit international public, 1991 (Chronique des faits inter-
nationaux), p. 440; Keesing's Record of World Events, June 1991, p. 3833.
3
8
Represented before the Court by Sir Gerald Fitzmaurice as agent.
39 Ie] Reports, 1954, p. 28.
4 Ibid.,p.27'

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tence from which Italy could not withdraw unilaterally; the Court however
dealt with it on the narrower ground that what Italy had done was not a
procedural discontinuance as contemplated by the Rules of Court.
In ruling on the arguments of the United Kingdom, the Court in effect
took a fairly literal view of the terms of the offer made by the three Govern-
ments. That offer was read as signifying that if Italy seised the Court of an
application for determination of the entitlement to the gold, then the three
Governments would refrain from handing it over to the United Kingdom.
The Washington Statement could however have been read as an offer to
have the question of entitlement to the gold determined by the Court if
Italy so required: on this basis, it could more convincingly be argued, as
the United Kingdom did, that the acceptance required of Italy was not the
mere filing of an application, but active co-operation in the case leading to a
judgment on the merits. In fact, the United Kingdom might have pre-
sented the matter in terms which appeared, in a decision of the Court
nearly twenty years later, as one of 'failure of consideration'. 4
1
The con-
sideration for the agreement to refrain from releasing the gold was, it might
be said, not the mere act of filing an application to the Court, but the settle-
ment through the Court of the question of entitlement. 4
2
In the case concerning Interpretation of the Agreement of25 March 1951
between the WHO and Egypt, the Court examined in some detail the
exchanges between Egypt and the WHO concerning establishment of the
WHO Regional Office in Alexandria, leading up to the 195 I Agreement ;43
it noted that 'Egypt offered to become host to the Regional Office in Alex-
andria and the Organization accepted that offer . . . '.44 No particular sig-
nificance was however attached to this means of creation of agreement; but
it is striking that the Court was prepared, and found it appropriate, to go
behind the 1951 Agreement at all. Its key finding was that
By the mutual understandings reached between Egypt and the Organization
from 1949 to 1951 with respect to the Regional Office of the Organization in Egypt,
whether they are regarded as distinct agreements or as separate parts of one trans-
action, a contractual legal regime was created between Egypt and the Organization
which remains the basis of their legal relations today. 4S
The case thus remains an example, at least in principle, of the possibility
of exception to the general rule that a written treaty defines the parties'
4' See Chapter II, section 2, and Chapter V, section 4, below.
4
2
The underlying weakness of the United Kingdom case, though the Court did not take the point,
was that the jurisdictional question raised by Italy was one that would have had to be considered by the
Court in any event. The absence of Albania, an essential party, was a defect which by definition could
not be cured by considerations ofjornm prorogatum on the basis of the attitude of the parties, including
Italy. On this basis, even a more substantive reading of the terms of the offer of the three Governments
need not have led to the conclusion that Italy's acceptance of that offer was invalid, or ineffective, or
withdrawn, inasmuch as all it was doing was bringing up a point which the Court would have had to
consider, spotlighting a difficulty which it was beyond its power to remedy.
43 See the historical survey at Icy Reports, 1980, pp. 77-85, paras. 13-28.
44 ICJ Reports, 1980, p. 93, para. 43-
4S Ibid., pp_ 92-3, para. 43.

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16
agreement, so as to render insignificant the preliminary stages of proposal,
counter-proposal and acceptance.
In the South West Afn'ca case, the objection was taken by South Africa
that the Mandate for South West Africa was not a 'treaty or convention' for
purposes of Article 36, paragraph I, of the Statute. In rejecting this objec-
tion, the Court dealt with the way in which the Mandate had come into
existence as an 'international agreement having the character of a treaty or
convention'vt? There is some indication in the Court's analysis that it dis-
cerned a pattern of offer and acceptance: it refers to the 1919 decision of the
Principal Allied and Associated Powers to confer the Mandate, and 'the
confirmation of its acceptance on 9 May 1919 by the Union of South
Africa"."? This exchange however preceded the drafting of the actual Man-
date text; the Court, not unreasonably, declined to break down the total
transaction into separate stages, each to be legally characterized individu-
ally, and referred to the 'Mandate' as a whole as 'a special type of instru-
ment composite in nature'. 4
8
(2) Consideration
Another element of the common law system of contract law which has
made its appearance on the international scene in a judgment of the Court is
that of 'consideration'. 49 In the Fisheries Jun'sdiction cases, Iceland sug-
gested that the Exchange of Notes of 1961 by which jurisdiction had been
conferred on the Court could no longer be invoked by reason of, inter alia,
changes of circumstances regarding 'legal opinion on fisheries jurisdic-
tion' .5 Commenting on this, the Court remarked:
However, the relevance to the compromissory clause of this allusion is not appar-
ent, since if there is a dispute as to such changes it would be embraced in the com-
promissory clause and might be considered an issue going to the merits. On the
other hand, it could be considered as relevant to the compromissory clause on an
hypothesis familiar to the law of certain States under the guise of 'failure of con-
sideration'. As such, it is linked with the assertion that, the object and purpose of
the agreement having been fulfilled, it no longer has a binding effect for Iccland.v'
4
6
ICJ Reports, 1962, p. 330.
47 Ibid., p. 33 1
4
8
Ibid.; the present writer would repeat here an observation made in an earlier article:
'With the independence of Namibia, the whole historical chapter of the mandates system has closed;
and it is probably wise to treat that system as to such an extent sui generis as to be, at least in the aspect
here considered, not capable of lending itself to any useful generalizations.' (This Year Book, 61 (1990),
p. 31.)
49 For readers not well versed in English law of contracts, the following quotation from Treitel, The
Law of Contract (8th edn., 1991), pp. 63-4, may be useful:
'In English law, a promise is not, as a general rule, binding as a contract unless it is either made in a
deed or supported by some "consideration" ... The basic feature of [the] doctrine is the idea of reci-
procity: "something of value in the eye of the law" must be given for a promise in order to make it
enforceable as a contract ... consideration is either some detriment to the promisee (in that he may
give value) or some benefit to the promisor (in that he may receive value).'
5 ICJ Reports, 1973, p. 16, para. 30; p. 61, para. 30.
5' Ibid.

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The 'consideration' for the consent by Iceland that the legality of any future
extension of fisheries jurisdiction might be tested by recourse to the Court
was the withdrawal by the United Kingdom of its objection to the Icelandic
twelve-mile zone; and the 'failure' of that consideration would thus be the
development of general international law whereby such a zone became a
generally recognized possibility. S2
The relationship between the concept of 'failure of consideration' and
that of 'fundamental change of circumstances', endorsed by the Vienna
Convention, will be examined in Chapter-V, section 4, below. The point to
be made here is that the Court might seem to have implied that consider-
ation, in the sense of the common law system of contract law, is an essential
element in the formation of international agreement embodied in a treaty .F'
since failure of consideration would apparently not be a relevant idea unless
consideration itself were such.
This however would, it is suggested, be to read too much into the
Fisheries Jurisdiction decisions; these were equally consistent with the view
that consideration is not an essential element in the formation of an inter-
national agreement, but that if such agreement is truly synallagmatic, so
that each side's commitment is in fact supported by consideration, the sub-
sequent failure of such consideration might be a ground for termination of
the treaty. In other words, a totally one-sided treaty is perfectly conceiv-
able, and would be valid; but if a treaty intended to create reciprocal rights
and obligations becomes one-sided, this may be a ground for termination.
Such a reading is confirmed by the Court's explanations of the legal effect
of unilateral acts in its judgments in the Nuclear Tests cases. Having
observed that
It is well recognized that declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating legal obligations-"
the Court added that when such a declaration is made publicly and with
intent to be bound,
In these circumstances, nothing in the nature of a quid proquo nor any subsequent
acceptance of the declaration ... is required for the declaration to take effect ... 55
I t is evident that if a legal obligation can be created by mere unilateral
declaration without any consideration moving from the State or States
intended to be benefited, it would be absurd if the same effect could not be
achieved by an instrument bilateral in form but intended to have the same
unilateral effect.
52 The exact effect on the law of the sea of an increased recognition of encroachments on the high seas
is not as easy to define as might appear: see the earlier article in this series, this Year Book, 60 (1989),
pp. 8 4 ~
53 Contra, F. Mann, 'Reflections on a Commercial Law of Nations', this Year Book, 33 (1957), p. 30.
54 ICY Reports, 1974, p. 267, para. 43; p. 472, para. 46.
55 Ibid.

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18
Halfway between these two forms of legal instrument, the treaty and the
unilateral declaration, falls the Washington Statement examined in the
Monetary Gold case, already discussed above. The statement was made by
three States jointly, and apparently bound them inter se by a treaty-law
obligation. With regard to Italy, the Statement constituted an offer, which
at the time of its being made was unsupported by any consideration. The
act of seising the Court, which the Court regarded as an acceptance of the
offer, could also perhaps be regarded as a form of consideration; its value to
the three Governments may have been questionable, but on the common
law definition of consideration there was sufficient 'detriment' to Italy in its
action of commencing court proceedings.
(3) Intention to create legal relations
A third well-established rule of the common law concerning contracts is
that
an agreement, though supported by consideration, is not binding as a contract if it
was made without any intention of creating legal relations.v''
International law analogies to this rule have already been dealt with in the
previous article in this series, 57 and will not be re-examined here.
2. Forms of Conclusion of Treaties
(1) Are there legal requirements as to form?
The formalities in diplomatic practice surrounding the conclusion of a
treaty have an evident purpose: to establish conclusively that agreement has
been reached between the parties, and to provide an authentic record of the
terms of that agreement. This normally implies, a contrario, that where an
element normally treated as essential is absent-e.g., if there is no single
text adopted by both parties, or if one party has not ratified a treaty which
requires ratification-, then there is no treaty and no pactum giving rise to
obligations.
This does not however mean that a treaty has to have any predetermined
form. In 1961 the Court made a general statement on this question of form,
although in respect, not of a treaty, but of a declaration of acceptance of jur-
isdiction under the Optional Clause. Thailand had argued, in the Temple
case, that
in legal transactions, just as the deed without the intent is not enough, so equally
the will without the deed does not suffice to constitute a valid legal transaction.
56 Treitel, The Law of Contract (8th edn., 1991), p. 149- This was the first defence raised by Wotan
to the claim by Fasolt and Fafner (Das Rheingold, Scene 2--see the quotation at the head of this
article), the second (on the advice of Loge) being that only an obligation de moyens and not an obligation
de resultat had been undertaken.
57 This Year Book, 62 (1991), pp. 8-15.

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The Court's comment was:
As regards the question of forms and formalities, as distinct from intentions, the
Court considers that, to cite examples drawn from the field of private law, there are
cases where, for the protection of the interested parties, or for reasons of public
policy, or on other grounds, the law prescribes as mandatory certain formalities
which, hence, become essential for the validity of certain transactions, such as for
instance testamentary dispositions; and another example, amongst many possible
ones, would be that of a marriage ceremony. But the position in the cases just men-
tioned (wills, marriage, etc.) arises because of the existence in those cases of man-
datory requirements of law as to forms and formalities. Where, on the other hand,
as is generally the case in international law, which places the principal emphasis on
the intentions of the parties, the law prescribes no particular form, parties are free
to choose what form they please provided their intention clearly results from it. 58
There can be no doubt that the final sentence of this passage applies to
international treaties. The International Law Commission recognized that
there are admittedly some important differences of a juridical character between
certain classes or categories of international agreements;
but emphasized that these differences 'spring exclusively from the content
of the agreement, whatever its form'.s9
The problems in pinning down the precise location and extent of the
treaty constituted by the Mandate for South West Africa have already been
discussed ;60 they too illustrate the flexibility as to matters of form which
characterizes international agreement.
It is worth recalling finally that it was in connection with action taken on
the basis of a not-yet-ratified treaty that the Permanent Court made its
famous observation that
The Court, whose jurisdiction is international, is not bound to attach to matters
of form the same degree of importance which they might possess in municipal
law.
6 t
(2) Ancient treaties
The Right of Passage case furthermore affords a reminder that the
present-day requirements for the conclusion of a treaty are not a legal absol-
ute; that all that is required is that a treaty should have come into existence
in the manner and with the formalities customary at the time and place
when it was made.I"
India objects on various grounds that what is alleged to be the Treaty of 1779
58 ICJ Reports, 1961, p. 31. Cf. also Lachs, 'Some Reflections on Substance and Form in Inter-
national Law', Transnational Law in a Changing Society (1972), p. 99.
59 Commentary on draft Articles, A/CONF.39!I I/Add.2, p. 8.
60 Above, Chapter II, section I, and this YearBook, 62 (1991), pp. 5-8.
61 Mavrommatis Palestine Concessions, PCIJ, Series A, No.2, p. 34. A similar approach was also
taken in Certain German Interests in Polish Upper Silesia, PCIJ, Series A, No.6, p. 14, and by the
present Court in Nicaragua v. United States Ourisdiction), ICJ Reports, 1984, pp. 428-<), para. 83.
62 This point has already been discussed under the heading of Intertemporal Law: this Year Book, 60
(1989), p. 13

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20
was not validly entered into and never became in law a treaty binding upon the
Marathas. The Court's attention has, in this connection, been drawn inter alia to
the divergence between the different texts of the Treaty placed before the Court
and to the absence of any text accepted as authentic by both parties and attested by
them or by their duly authorized representatives. The Court does not consider it
necessary to deal with these and other objections raised by India to the form of the
Treaty and the procedure by means of which agreement upon its terms was
reached. It is sufficient to state that the validity of a treaty concluded as long ago as
the last quarter of the eighteenth century, in the conditions then prevailing in the
Indian Peninsula, should not be judged upon the basis of practices and procedures
which have since developed only gradually. 63
Nor is it necessary to prove what the contemporary forms and practices
were if the challenged treaty can be shown to have been accepted as valid:
The Marathas themselves regarded the Treaty of 1779 as valid and binding upon
them, and gave effect to its provisions. The Treaty is frequently referred to as such
in subsequent formal Maratha documents, including the two sanads of 1783 and
1785, which purport to have been issued in pursuance of the Treaty. The Marathas
did not at any time cast any doubt upon the validity or binding character of the
Treaty.6
4
A similar problem arose in respect of a treaty between Spain and Mor-
occo, relied on in the Western Sahara case. Morocco produced an Arabic
text, and Spain a text in Spanish, which proved, on an important issue, to
have substantially different meanings; it was contended by each side that
the text which it had produced was authentic and there was no evidence to
justify the Court's attributing that character to the one text rather than to
the other. The Court was able to escape from the dilemma
because a number of later treaties, closer to the time of the colonization of Western
Sahara and thus more pertinent in the present connection, contained clauses of a
similar character . . .65
which enabled the Court to arrive at a conclusion on the underlying issue to
which the earlier treaties were alleged to be relevant.
The Court however found it necessary to add the following:
In so far as this, or any other treaty provision, is relied upon by Morocco as
showing international recognition by another State of Moroccan sovereignty, it
would be difficult to consider such international recognition as established on the
sole basis of a Moroccan text diverging materially from an authentic text of the
same treaty written in the language of the other State.P"
At first sight, this appears to mean that the existence of the divergent
Spanish text operated to deprive the Arabic text of legal value; that since
63 ICJ Reports, 1960, p. 37.
64 Ibid. The Vienna Convention (Art. 3I(3)(b recognizes the relevance of subsequent practice of
the parties for the interpretation of a treaty, but is silent on the possibility of such practice curing defects
in its adoption.
65 ICJReports, 1975, p. So, para. III.
66 Ibid., pp. SO-I, para. 1 I I.

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there was no way of showing which text accurately represented the terms
agreed, the only conclusion had to be that the parties, working in different
languages, were not ad idem, so that there was pro tanto no treaty. This
would hardly be consistent with the decision in the Right ofPassage case.
However, it has to be borne in mind that, as observed in the previous
article in this series,'? the question was not the precise extent and nature of
the obligations assumed by the parties in the disputed clause of the treaty.
Morocco was asserting that the text (at least the Arabic text) showed the
extent of the dominions of the Sultan of Morocco at the relevant time,
because it 'signifies that the Sultan was recognized to have the power to take
decisions with respect to the inhabitants of 'Wad Noun and beyond'r'" i.e.,
that the treaty was relevant as 'evidencing Spanish recognition of the Sul-
tan's sovereignty to the south of the Wad Noun'i''? It is therefore more
probable that all that was meant by the passage quoted above is that satis-
factory evidence of such recognition by Spain would have been an appro-
priate text in the version of the treaty in the Spanish language; that if the
two parties were working on inconsistent texts, the relevant article of the
treaty was not necessarily invalidated, but only the Spanish text could be
regarded as opposable to Spain to support a claim of Spanish recognition of
something outside the treaty itself.
(3) Consent to be bound established by deposit ofappropriate instrument
The decision of the Court at the preliminary objections stage of the Right
ofPassage case, concerning the date from which a declaration of acceptance
of jurisdiction under the Optional Clause took effect, was referred to by the
International Law Commission as relevant to the analogous situation of the
deposit of ratification of a treaty, dealt with in Article 16 of the Vienna Con-
vention. India in that case had been caught unawares by an application filed
by Portugal instituting proceedings against India, before India was aware
that Portugal had deposited an Optional Clause declaration: the 'lightning-
strike' technique. 7 India contended that such a declaration did not become
effective until, in accordance with the Court's Statute, the Secretary-
General had transmitted copies of the declaration to the parties to the Stat-
ute. The Court would have none of this: the
consensual bond, which is the basis of the Optional Clause, comes into being
between the States concerned
on the day on which the declaration is deposited; 7
1
and
67 This Year Book, 62 (1991), p. 32.
68 IC] Reports, 1975, p. 50, para. 109.
69 Ibid., p. 50, para. 110.
7 Cf. the present writer's 'Reciprocity in the Jurisdiction of the International Court', Netherlands
Yearbook of International Law, 15 (1984), P: II8.
7' IC] Reports, 1957, p. 146. The Court refers to the day of deposit: interesting problems might
arise if an application were filed in The Hague on the same day as a declaration were deposited in New
York, taking into account the different time-zones!

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22
The legal effect of a Declaration does not depend upon subsequent action or
inaction of the Secretary-General. 7
2
Commenting on this in the context of the deposit of ratification of a
treaty, the ILC observed that
If this case indicates the possibility that difficult problems may arise under the
rule in special circumstances, the existing rule appears to be well-settled.Y'
3. Consent and Defects in Consent
(1) Error
(a) What kind of error is relevant? At both the jurisdictional stage and
the merits stage of the case concerning the Temple of Preah Vihear, the
Court was faced with a plea of error, in relation to a treaty and in relation to
an acceptance of jurisdiction under the Optional Clause-a unilateral act
bearing sufficient similarity to acceptance of a treaty for similar consider-
ations to be applicable to a plea of this kind. It was in the context of the
Optional Clause declaration that the Court made the important dictum that
the principal juridical relevance of error, where it exists, is that it may affect the
reality of the consent supposed to have been given, 74
which is evidently of equal application in the context of the conclusion of
treaties.?"
The jurisdictional question was the validity of a declaration made by
Thailand in 1950 purporting to renew a declaration made in 1940 accepting
jurisdiction of the Permanent Court, which had ceased to be effective with
the disappearance of the Permanent Court and was not, on the authority of
the Court's ruling in the Aerial Incident (Israel v. Bulgaria) case, revived
by Thailand's accession to the United Nations Charter.
Thailand's position, it might be said, is that in 1950 she had a mistaken view of the
status of her 1940 Declaration, and for that reason she used in her Declaration of
1950 language which the decision of the Court in the Israel v. Bulgaria case
showed to be inadequate to achieve the purpose for which that Declaration was
made.Z?
The Court's view was however that Thailand fully consented and intended
in 1950 to accept the jurisdiction of the present Court, and merely used an
inappropriate form of words. For this reason, the Court stated that 'it does
not consider that the issue is really one of error'; 77 and that 'There was in
Ibid.
73 Commentary on draft Articles, A/CONF.39/II/Add.2, p. 21.
74 ICJ Reports, 1961, p. 30.
7S Cf. Vienna Convention, Art. 48( 1) : 'A State may invoke an error in a treaty as invalidating its con-
sent to be bound by the treaty if ... (etc.)'.
7
6
ICJ Reports, 1961, p. 30.
77 Ibid.

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23
any case a real consent in 1950, whether or not it was embodied in a legally
effective instrument'. 7
8
The error was therefore irrelevant to the existence of consent, presum-
ably in the sense that if an 'officious bystander' had pointed out the error to
Thailand, that it was using the wrong form to achieve its purpose, it would
not have abandoned its purpose but would have employed the correct form.
Relevance is apparently to be defined by this criterion: if the error had been
pointed out, would the transaction have proceeded on the substantive terms
in which it did?
This may be tested by consideration of the facts of the merits phase of the
same case. A treaty of 1904 between France and Siam {Thailand}"? had
provided for the frontier between Thailand and Cambodia in a particular
area to follow a particular watershed, and for the frontier to be delimited by
a Mixed Commission. A map produced following the work of the Mixed
Commission showed a line, in the disputed area, which, as it later proved,
did not follow the watershed. That map had been accepted by Thailand;
but it was argued before the Court by Thailand that 'an error was commit-
ted. an error of which the [Thai] authorities were unaware at the time they
accepted the map'. 80 The Court's interpretation of the relationship between
the conclusion of the treaty and the acceptance of the map was that 'the
acceptance of the . . . map by the Parties caused the map to enter the treaty
settlement and to become an integral part of it' .81
On Thailand's claim of error, which can thus be assimilated to error in
the conclusion of a treaty, the Court first declared that
It is an established rule of law that the plea of error cannot be allowed as an
element vitiating consent if the party advancing it contributed by its own conduct
to the error, or could have avoided it, or if the circumstances were such as to put
that party on notice of a possible error. The Court considers that the character and
qualifications of the persons who saw the Annex I map on the Siamese [Thai] side
would alone make it difficult for Thailand to plead error in law. These persons
included the members of the very Commission of Delimitation within whose com-
petence this sector of the frontier had lain.
82
This terminology was subsequently taken over in the Vienna Convention
on the Law of Treaties (Article 48, paragraph 22), save that the words 'or
could have avoided it' do not appear in the Convention text.
The 'contribution' of Thailand to the error is not entirely clear; the evi-
dence was that the actual surveying and preparation of the maps was carried
out by two French officers, so that all the Thai members of the Commission
of Delimitation did was to fail to notice the incorrect position of the line.
7
8
ICY Reports, 1962, p. 26.
79 The State will be referred to here throughout, unhistorically but conveniently, as 'Thailand' (with
adjustment of quotations from the judgment).
80 ICY Reports, 1962, p. 26.
81 Ibid, p. 33.
82 Ibid, p. 26.

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Unless it was reasonably evident, even to someone who had not taken part
in the survey, that the line was wrong, it would hardly be a 'contribution' to
the error to fail to observe it.
However the Court held that it was so evident:
But even apart from this, the Court thinks that there were other circumstances
relating to the Annex I map which make the plea of error difficult to receive.
An inspection indicates that the map itself drew such pointed attention to the
Preah Vihear region that no interested person, nor anyone charged with the duty of
scrutinizing it, could have failed to see what the map was purporting to do in
respect of that region. If, as Thailand has argued, the geographical configuration of
the place is such as to make it obvious to anyone who has been there that the
watershed must lie along the line of the escarpment (a fact which, if true, must
have been no less evident in 1908), then the map made it quite plain that the Annex
I line did not follow the escarpment in this region since it was plainly drawn appre-
ciably to the north of the whole Preah Vihear promontory. Nobody looking at the
map could be under any misapprehension about that.
Next, the map marked Preah Vihear itself quite clearly as lying on the Cambo-
dian side of the line, using for the Temple a symbol which seems to indicate a
rough plan of the building and its stairways.
It would thus seem that, to anyone who considered that the line of the watershed
at Preah Vihear ought to follow the line of the escarpment, or whose duty it was to
scrutinize the map, there was everything in .the Annex I map to put him upon
enquiry.f'
Accordingly,
The [Thai] authorities knew it was the work of the French topographical officers
to whom they had themselves entrusted the work of producing the maps. They
accepted it without any independent investigation, and cannot therefore now plead
any error vitiating the reality of their consent. The Court concludes therefore that
the plea of error has not been made out. 84
This case has already been examined in the first of this series of articles,
under the heading of 'Estoppel in relation to treaty commitments'. 8s It was
there observed that Thailand's silence in face of the erroneous map was sus-
ceptible of three different interpretations, and that the interpretation
selected by the Court was that Thailand had in effect conveyed the mess-
age: I accept the map line, whether or not it follows the watershed, as the
treaty frontier. This however was an attitude attributed to Thailand on the
basis of its silence, not an approach which Thailand could be proved as a
matter of fact to have adopted. For this reason, as observed in the previous
article, it is inappropriate and inconsistent at the same time to apply the
rule that an error to which the State complaining of it has contributed can-
not be relied on as vitiating consent.
The Court's approach however seems to be directed to the application of
83 Ibid.
84 Ibid., pp. 26-7.
85 This Year Book, 60 (1989), pp. 47-<).

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the test, suggested above, for the definition of a material error, and to be
thus confirmatory of the appropriateness of that test. If it had been pointed
out to Thailand that the map line and the treaty definition were in conflict,
it would presumably have declined to accept the map, and thus to cause it
to 'enter the treaty settlement'. The Court's finding was in effect that this
non-correspondence was however a matter of indifference to Thailand-or
rather that Thailand behaved in such a way as to convey the impression that
that was the case.
(b) Error for which the complainant State was itself to blame. Whether
or not it was appropriately applied in the Temple case, it is clear that there
is, as the Court said,
an established rule of law that the plea of error cannot be allowed as an element
vitiating consent if the party advancing it contributed by its own conduct to the
error, or could have avoided it, or if the circumstances were such as to put that
party on notice of a possible error. 86
Did Thailand 'contribute by its own conduct to the error', or were 'the cir-
cumstances ... such as to put that party on notice of a possible error'? The
latter, it seems: the point on which the Court based its decision was that the
map 'made it quite plain that the Annex I line did not follow the escarp-
ment', and the escarpment co-incided with the watershed, which was where
the frontier line was, according to the treaty, to pass.
Thus in a sense the error sought to be relied on was not the error of a
party at all: it was the error of the Commission responsible for the map. If
a party accepts a map which shows, and shows sufficiently clearly for the
party to be at fault if it fails to notice it, a line other than the one intended to
be agreed, can it rely on error at all? It is rather as if the text of a treaty
when drawn up failed in an important respect to correspond to the terms
agreed ad referendum, to which the treaty was intended to give effect. To
seek to repudiate the treaty in such circumstances is more akin to a plea of
non est factumt" than one of mistake; and it does not appear appropriate to
introduce this common law o n e ~ t developed for the protection of illiter-
ates, into the world of diplomacy. 8
An interesting parallel to the operation of error in relation to the conclu-
sion of treaties is to be found in the case arising out of the Court's decision
in the Tunisia/Libya case: Application for Revision and Interpretation of
the Judgment of 24 February 1982 in the Case concerning the Continental
Shelf (Tunisia/Libyan Arab Jamahinya) (Tunisia v. Libyan Arab Jama-
86 ICJ Reports, 1962, p. 26.
87 On this see Treitel, The Law of Contract (8th edn., 1991), pp. 291-4.
88 The Vienna Convention distinguishes between 'errors in the wording' of a treaty and 'errors in the
treaty' (ILC Commentary, A/CONF.39/11/Add.2, p. 64, paragraph (9, the former being dealt with
under Article 74, and the latter under Article 48; if there is any dispute whether the error is solely one in
the wording, the matter 'becomes a problem of mistake which falls under Article [48]' (ibid., p. 91,
para. (I. This does not resolve the problem whether a party can claim mistake simply because it failed
to read the text carefully enough before signing.

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hiriya).8
9
Tunisia's application for revision was based on Article 61 of the
Statute of the Court, paragraph I of which provides that
An application for revision of a judgment may be made only when it is based
upon the discovery of some fact of such a nature as to be a decisive factor, which
fact was, when the judgment was given, unknown to the Court and also to the party
claiming revision, always provided that such ignorance was not due to negligence.
The fact in question, according to Tunisia, was a text which established
the co-ordinates determining the course of the north-western boundary of a
Libyan petroleum concession; Tunisia contended that the Court's earlier
judgment had been based on an incorrect version of this boundary, and that
the error had materially influenced the decision.
In its decision on the request for revision the Court took into account
(inter alia) the possibility that Tunisia could have ascertained the details of
the co-ordinates either from the Libyan pleadings or from other sources.
After ascertaining that the exact co-ordinates were not determinable on the
basis of the pleadings, the Court observed that
while the co-ordinates of Concession No. 137 were never published, they were,
according to Libya 'readily obtainable in Tripoli'. It was also possible, according to
Libya, to obtain the information from the Libyan National Oil Corporation. It has
been shown by Libya in the present proceedings that an independent firm of con-
sultants in the petroleum industry was thus able to obtain the information in ques-
tion in 1976; and Tunisia has neither explained why it would not have been
possible for it to do the same-or indeed itself to apply to the firm of consultants in
question-nor proved that if it had made such approaches, they would have been
unsuccessful. 9
In response to a suggestion by Tunisia that it 'cannot be held negligent in
any way' because it had repeatedly asked the Libyan Government for the
document, the Court added:
While it was no doubt correct as a matter of diplomatic practice for Tunisia to
invite the Libyan Government to supply the relevant information, there was no
reason why Tunisia, particularly if it was not receiving from the Libyan Govern-
ment the co-operation which it apparently expected, should not employ other, per-
fectly lawful and proper, means to obtain it.?'
While these findings are, strictly, limited to the question whether Tuni-
sia's ignorance of the co-ordinates was or was not 'due to negligence', it is
suggested that the Court's approach would have been the same had the
claim before it been directed to repudiation of a treaty on grounds of error.
This is indeed virtually what the Court stated in a further paragraph
devoted to the matter.
89 ICj Reports, 1985, p. 192. This monumental case title, recalling some of the more inspired efforts
of the draftsmen of English statutory instruments, prompts the question: what title would have been
given to a case concerning a further request for interpretation of the judgment in this case?
9
0
Ibid., p. 206, para. 25.
9
1
Ibid., p. 206, para. 26.

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Normal diligence would require that, when sending a delegation to negotiate a
continental shelf delimitation, following the grant by each side of neighbouring or
conflicting concessions, a State should first try to learn the exact co-ordinates of the
other party's concession. Furthermore, it is to be expected that a State would not
assert that such concession extended to its own area of continental shelf without
knowing, or making efforts to discover, the exact limits of the concession.?"
(c) Error of fact and error of law. In its judgment on the preliminary
objections in the Temple case, the Court, after describing the error which
Thailand claimed to have made and which, it was argued, invalidated the
Optional Clause declaration made under its influence, commented that
Any error of this kind would evidently have been an error of law, . . . 93
The Court did not explain what, if any, significance this observation might
have had for its argument, merely continuing
but in any event the Court does not consider that the issue in the present case is
really one of error.
It seems that this remark may he attributed to a Member of the Court
familiar with the common-law rules as to mistake in the field of contract
(and, indeed, probably to Sir Gerald Fitzrnaurice l ). It is only in the Anglo-
American law of contract that there is a material distinction between the
situation where the parties to a contract are, or one of them is, under a mis-
take as to a factual situation, and that where the mistake is on a relevant
question of law. 94 While the question is not free from difficulties in prac-
tice, in principle a mistake of law cannot be pleaded as a ground for annull-
ing a contract concluded under the influence of the error. 95
What then is the situation in international Iawr?? A 'general principle of
law' can hardly be derived from a rule which is a peculiarity of one legal sys-
tern; there is no State practice, nor any judicial decision, to support such
principle, and legal writers are divided.?? It is only if the exception can be
regarded as necessarily or appropriately implied by the main rule, the rule
recognizing that error may be a ground for repudiation of treaties, that it
would seem justified to include it in international law.
9
2
Ibid., p. 206, para. 27 (emphasis added).
93 ICJReports, 1961, p. 30.
94 For a comparative-law survey, see Schulte-Beerbiihl, Irrtum bei colherrechtlichen Vertriigen nach
der Wiener Vertragsrechtskonvention (Gelsenkirchen, 1982), pp. 125 ff., particularly pp. 154, 158.
95 The original common-law rule was more restrictively expressed: it was that money paid under a
mistake of law could not be recovered by an action for money had and received: see Anson's Law of Con-
tract (26th edn., by Guest, 1984), pp. 254,586. It may be however that even in case of a mistake of law,
relief might be given in equity: see Treitel, Lawof Contract (8th edn., 1991), pp. 277-8.
9
6
It may not be superfluous to observe that what is here contemplated is a mistake by one or both
parties as to the provisions or effect of international law: mistake as to a question of municipal law will
presumably rank as a mistake of fact (in this sense, Schwarzenberger, A Manual 0/ International Law
(5th edn., 1967), p. 159). It does not however follow a contrario , as Elias appears to have thought
('Problems concerning the Validity of Treaties', Recueil des cours , 134 (1971-111), p. 366) that a mis-
take of international law is necessarily without effect on a treaty.
97 Schulte-Beerbuhl, op. cit. above (n. 94), pp. 70-4.

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The terms of the Vienna Convention on the Law of Treaties do not
themselves give any unambiguous indication of the intended rule. Article
48 of the Convention requires that the error invoked should relate
to a fact or situation which was assumed by [the] State to exist at the time when the
treaty was concluded;
but a 'situation' might include a situation in law as well as one of fact. 9
8
However, it its Commentary on the Draft Articles presented to the Vienna
Conference, the International Law Commission explained the intended
meaning of its text as follows:
The Commission appreciated that an error in a treaty may sometimes involve
mixed questions of fact and of law and that the line between an error of fact and of
law may not always be an easy one to draw. Nevertheless, it considered that to
introduce into the article a provision appearing to admit an error of law as itself
a ground for invalidating consent would dangerously weaken the stability of
treaties?".
De lege ferenda, at least, therefore, the Convention does recognize the
distinction drawn by English law between mistakes of fact and mistakes of
law. The observation quoted from the Temple case cannot be given much
weight in assessing what view the Court would take. It is also worth
remarking that the mistake alleged by Thailand in that case was, in part,
attributable to an uncertainty as to the effect of the Court's decision in the
Aerial Incident (Israel v. Bulgartas case; and no less an authority than Ver-
dross took the view that, if error of law should be recognized as a ground of
invalidity of treaty, this was because so many questions of law remain con-
troversial as a result of the proliferation of separate and dissenting opinions
appended to decisions of the Court pOO
(2) Duress: the Fisheries Jurisdiction cases
In the two Fisheries Jun'sdiction cases, the basis of jurisdiction relied on
was, in each case, an Exchange of Notes concluded in 1961 between Iceland
and each of the other two States. In communications to the Court Iceland,
which was not appearing in the proceedings, made statements which were
taken by the two applicant States as 'a veiled charge of duress purportedly
rendering the Exchange of Notes void of ab initio"?' or as intimating that
Iceland had entered into it 'under some kind of pressure and not by its own
9
8
In this sense Schulte-Beerbiihl, op. cit. above (no 94), P: 192, who also distinguishes between mis-
take as to the existence of a legal situation which motivates the conclusion of a treaty, and mistake as to
the legal consequences expected to flow from the treaty, (Into the latter category would fall, according
to Anzilotti, the mistake of Norway in the Ihlen Declaration as to 'the legitimate consequences following
upon an extension of sovereignty' by Denmark, a mistake which he considered not to be 'of an excusable
character': see PCI], Series AlB, No, 53, p. 92.) The alleged error of Thailand as to its acceptance of
jurisdiction in the Temple case would also appear to fall into this latter category.
99 See the ILC Commentary, A/CONF.39/II/Add,2, p. 64, para. (6),
100 Volkerrecht (5th edn., Vienna, 1964), p. 169,
101 Ie] Reports, 1973, p. 14, para, 24 (UKv. Iceland); Pleadings, vol. I, pp. 140-3.

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free will'. 102 The Court simply rejected these suggestions as unsupported
by evidence.
There can be little doubt, as is implied in the Charter of the United Nations and
recognized in Article 52 of the Vienna Convention on the Law of Treaties, that
under contemporary international law an agreement concluded under the threat or
use of force is void. It is equally clear that a court cannot consider an accusation of
this serious nature on the basis of a vague general charge unfortified by evidence in
its support. The history of the negotiations which led up to the 1961 Exchange of
Notes reveals that these instruments were freely negotiated by the interested par-
ties on the basis of perfect equality and freedom of decision on both sides. No fact
has been brought to the attention of the Court from any quarter suggesting the
slightest doubt on this matter. 13
The first remark which may be made in this respect is that the Court
clearly departs from the
traditional view under which treaties procured through the coercion of a State by
the threat or use of force were nevertheless considered valid in international law. I04
That this departure was conscious is suggested by the specific reference to
'contemporary international law', by the defensive phrasing 'there can be
little doubt ... " and by the allusions to the Charter and the Vienna Con-
vention. lOS Secondly, it may be noted that the Court seems initially to sug-
gest that there is a presumption in favour of the validity of a treaty which
has apparently been consented to in regular form, so that an allegation of
duress must be backed by evidence. It then seems to retreat slightly from
this position, by basing its rejection of the claim of duress equally on 'the
history of the negotiations', i.e., on the evidence as to that history which
had been produced by the two applicants. It is suggested that the first pos-
ition is the correct one.
The explanation for the shape of the Court's reasoning on this point may
be that one Member of the Court (Judge Padilla Nervo) dissented and took
the view that 'the Court should not overlook' the pressure exerted by the
presence of the Royal Navy on the fishing grounds, 'and does not need to
request documentary evidence as to the kind, shape and manner of force
which was used (Art. 52, Vienna Convention on the Law of Treaties)'; 106
in other words, duress could be deduced from a sort of res ipsa loquitur.
Neverthe1ess, the fact that the Court was able to conclude on the facts
that the Exchanges of Notes
102 IC) Reports, 1959, p. 24, para. 24 (FRG v. Iceland); Pleadings, vol. 2, pp. 77-8.
13 IC] Reports, 1973, p. 14 and p. 59, para. 24 (identical texts in each judgment).
10
4 Briggs, 'Unilateral Denunciation of Treaties: The Vienna Convention and the International
Court of Justice', American)oumal of International Law, 68 (1974), pp. 62-3.
10
5 Note that the Court does not here use the formula of the Namibia opinion with reference to a pro-
vision of the Vienna Convention ('which may in many respects be considered as a codification of existing
customary law on the subject': ICJ Reports, 1971, p. 47. para. 95), though this formula is used else-
where in the Fishenes Turisdiction judgments: p. 18, para. 36; p. 63, para. 36.
106 ICJ Reports, 1973, pp. 46-7; see also p. 91.

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3
were freely negotiated by the interested parties on the basis of perfect equality and
freedom of decision on both sides."?
shows that it attached importance to its finding of principle as to the possi-
bility that a treaty may be void for duress. It could have relied on this fac-
tual finding alone, and left open the wider issue; as it is, one might contendthat
the ruling on that issue is no more than an obiterdictum. Despite the allusion to
two treaty instruments, the Charter and the Vienna Convention, the principle
is clearly intended as one of customary law: even though it was only 13 years
later that the Court, 'with all due caution', deduced that the obligation to
refrain from the threat or use of force in Article 2, paragraph4, of the Charter is
also a principle of customary law. 108 This is the sense of the reference to the
Charter in the Fisheries Jurisdiction cases. There was some suggestion by the
Federal Republic that Iceland might be understood to allude to duress taking
some form other than the threat or use of force (e.g., economic pressure), 19
but the Court did not examine the point.
It is difficult to contradict Judge Padilla Nervo's general statement as to
the weight of political pressure:
A big power can use force and pressure against a small nation in many ways,
even by the very fact of diplomatically insisting in having its view recognized and
accepted. The Royal Navy did not need to use armed force, its mere presence on
the seas inside the fishery limits of the coastal State could be enough pressure. It is
well known by professors, jurists and diplomats acquainted with international rela-
tions and foreign policies, that certain 'Notes' delivered by the-government of a
strong power to the government of a small nation, may have the same purpose and
the same effect as the use or threat of force. I IO
The difficulty is of course that, pursued to its logical conclusion, this argu-
ment would mean that a treaty concluded between a great power and a
small one could always be repudiated by the small one on the grounds of
duress; or at least, that the onus would be on the great power to show that it
had not in fact 'leaned on' the other State when the treaty was negotiated. I I I
Fitzmaurice (in the last separate opinion which came from his pen before
he left the Court) did not comment on the question whether duress was, in
general law, a ground for setting aside a treaty; he merely showed how an
analysis of the Exchanges of Notes themselves proved that Iceland gained
every bit as much from their conclusion as did its two treaty-partners. I 12
10
7 Ibid., p. 14, para. 24: p. 59, para. 24
108 Nicaragua v. United States, ICJ Reports, 1986, pp. 99-100, para. 188.
10
9 The possibility that treaties might be declared void for duress not involving the use of force was
pressed in the International Law Commission and at the Vienna Conference, but was not included in
Article 52: see the Declaration on the point attached to the Final Act of the Conference, and cf. Ago,
'Droit des traites ala lumiere de la Convention de Vienne', Recueil des cours, 134 (1971-III), p. 319.
110 ICJ Reports, 1973, p. 47.
III The International Law Commission was aware of the difficulty, but regarded it as essential to
include in its text 'a ground of invalidity springing from the most fundamental provisions of the
Charter': Commentary on the draft Articles, A/CONF.39/II/Add.2, p. 66.
112 IC] Reports, 1973, pp. 34-5,78-<) .

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This approach brings out the similarity of operation of duress and error as
invalidating consent to be bound by treaty. Just as an alleged error is rel-
evant to the validity of consent if the State relying on it can show that it
would not have concluded the treaty in the form it did, had the error been
pointed out in time, so it is material in the case of alleged duress to ask,
would the State claiming duress have entered into the treaty had the cir-
cumstances said to contribute duress not been present? In effect, what Fitz-
maurice was seeking to show was that, even if there had been no
enforcement, or fishery protection, by the Royal Navy, the terms of the
Exchange of Notes were such that it was in Iceland's best interests to accept
them, and therefore that Iceland could be taken to have accepted them in
full and free consent. It is perhaps not out of place to remark that States, no
more than individuals, do not always act in their own best interests as dis-
cerned by a benevolent and detached observer; but this does not invalidate
the argument.
(3) Reservations I I2A
During the period under review, the Court has not had occasion to make
any major pronouncement on questions concerning reservations to treaties.
Two points however call for mention; the first is the passage of the judg-
ment in the North Sea Continental Shelf cases
lI zB
on the significance of
Article 12 of the 1958 Geneva Convention on the Continental Shelf, the
Article which excluded the possibility of reservations to Articles 1-3 of the
Convention. This question has already been treated in the first of these
articles, under the heading of 'Jus cogens and reservations to multilateral
conventions'; I I2C it is mentioned here simply for completeness.
The second question concerning reservations which has arisen before the
Court during this period is whether a reservation has any effect on the par-
ties' relations outside the sphere of operation of the treaty in respect of
which it is made. In the case concerning the Applicability ofArticle VI, Sec-
tion 22, of the Convention on the Prnnleges and Immunities of the United
Nations, I I2D it was contended by Romania that its reservation to that Con-
vention, which excluded the provision (Section 30) for disputes settlement
by advisory opinion, operated to debar the Court from giving an advisory
opinion in connection with such a dispute even where the request was not
made on the basis of Section 30. A parallel is afforded by two earlier cases,
where the reservation relied on was not a reservation to a treaty but part of
an Optional Clause declaration: in the Nuclear Tests cases, France argued
1I2A Fitzmaurice treated this subject extensively in his 1957 article, by reference to the Genocide
case: this Year Book, 33 (1957), pp. 272-3; Collected Edition, I, pp. 46-27.
mB ICJ Reports, 1969, pp. 38-9, para. 63.
me This Year Book, 60 (1989), pp. 102-3.
112D ICJ Reports, 1989, p. 177. This decision was given after completion of the first of the articles in
the present series, which therefore stated that the last decision to be treated would be Elettronica
Sicula: this Year Book, 60 (1989), p. 5. It seems however more convenient to bring the survey up to 31
December 1989.

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3
2
that reservations to its declaration also affected jurisdiction under the 1928
General Act for the Pacific Settlement of International Disputes, and in the
Border and Transborder Armed Actions case between Nicaragua and Hon-
duras, the latter contended that the jurisdiction established by the Pact of
Bogota was intended to be subject to the terms of declarations filed under
the Optional Clause. In the Nuclear Tests cases, the Court did not deal
with the point;II2E in the ArmedActions case, it rejected the Honduran con-
tention. II2F
Since in each of these cases the reservations relied on were limitative of
the jurisdiction of the Court, it will be more appropriate to examine them
fully in a later article, to be devoted to 'Questions of Jurisdiction, Com-
petence and Procedure'.
CHAPTER I I I:
THE TREATY IN ACTION
1. "",nat is Meant by Saying that a Treaty is 'in Force'?
Both Article 36 (paragraph 1) and Article 37 of the Court's Statute pro-
vide for the Court to have jurisdiction under 'treaties and conventions in
force'; and Article 36, paragraph 5, also uses the expression 'in force' in
relation to declarations under the Optional Clause of the Statute of the Per-
manent Court. The decisions of the Court on the meaning of the words
may be regarded, in a narrow sense, as no more than interpretations of a
specific text; but they may also be read together with dicta in the leAD
Appeal case to give some indication of the meaning of an important concept
in general treaty-law.
(1) The Barcelona Traction case
By a 1927 Treaty of Conciliation, Judicial Settlement and Arbitration,
Belgium and Spain agreed to reference of disputes, in certain circum-
stances, to the Permanent Court of International Justice. That Court
ceased to exist in April 1946, but Article 37 of the Statute of the present
Court provided that
Whenever a treaty or convention in force provides for reference of a matter
to ... the Permanent Court of International Justice, the matter shall, as between
the parties to the present Statute, be referred to the International Court of Justice.
Belgium was from the outset a Member of the United Nations and party to
the Statute; Spain was admitted to the United Nations in 1955. Could Bel-
I I:>.E The question was however fully examined in the joint dissenting opinion of four judges in that
case: Ie] Reports, 1974, pp. 3 4 ~ 5 paras. 77-86.
1I2F Ie] Reports, 1988, p. 88, para. 41.

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gium rely on the 1927 Treaty coupled with Article 37 of the Statute to
found jurisdiction over a dispute with Spain?
Spain's objection to jurisdiction was based on the fact that between 1946,
when the Permanent Court was dissolved, and 1955, when Spain became a
party to the Statute, the treaty provision for recourse to the Permanent
Court was necessarily inoperative as regards Spain. Could it therefore be
said to be 'in force'?113 The Court seems to have taken it for granted that
the treaty was, apart from this provision, 'in force'; it noted that the treaty
had been kept alive by tacit renewals, and the jurisdictional clause referring
to the Permanent Court was not its sole provision or object. The debate was
therefore whether that jurisdictional clause was or was not 'in force'. 114
To hold that it was would lead, in Spain's contention,
in such a case as that of the Respondent Government, to a situation in which the
jurisdictional clause concerned, even if in existence, is necessarily inoperative and
cannot be invoked by the other party to the treaty containing it; and then, after a
gap of years, suddenly it becomes operative again, and can be invoked as a clause of
compulsory jurisdiction to found proceedings before the Court. It is asked
whether, in these circumstances, any true consent can be said to have been given
by the Respondent Government to the exercise of jurisdiction by the Court in this
class of case. lIS
The Court saw nothing untoward in such a situation:
the Court would observe that the notion of rights and obligations that are in
abeyance, but not extinguished, is perfectly familiar to the law and represents a
common feature of certain fields. 116
A key point which the Court did not deal with specifically was however
that of the date or period at which the relevant treaty had to be 'in force';
but it appears to have proceeded on the assumption that the treaty had to be
'in force' at the time the Court was seised-it refers to the 1927 Treaty as
'being in force' at the time of the Court's judgment"17_as well as at the date
when Spain became a party to the Statute. lIB
The result-though the Court seems to have been unaware of it--was
that the expression 'in force' was being given two different meanings. At the
date the Court was seised, the Treaty, including the jurisdictional clause,
was in force in the full sense, so that it could be invoked to found jurisdic-
tion. At the moment in 1955 immediately preceding Spain's admission to
II] In favour of its contention that it was, Belgium relied extensively on Sir Gerald Fitzmaurice's
Reports to the ILC on the Law of Treaties: see Pleadings, vol. I, pp. 74-5.
"4 See for example Guggenheim in Barcelona Traction, Pleadings, vol. 2, pp. 126 ff.
"5 IC] Reports, 1964, p. 35.
lI6 Ibid., p. 36.
"7 Ibid., p. 32 .
118 This results from the following finding: 'States joining the United Nations or otherwise becoming
parties to the Statute, at whatever date, knew in advance (or must be taken to have known) that, by
reason of Article 37, one of the results of doing so would, as between themselves and other parties to the
Statute, be the reactivation in relation to the present Court, of any jurisdictional clauses referring to the
Permanent Court, in treaties still in force, by which they were bound' (ibid., p. 3
6).

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34
the United Nations, it could not be so invoked; yet it was taken to be 'in
force' at that moment. Apart from this inconsistency, it seems strange that
the Court should have been able to conclude that a clause in a treaty may be
'in force', for some purposes at least, even if, for reasons connected with
events independent of the treaty, the parties cannot call upon each other to
implement it. The distinction between the individual clause and the treaty
as a whole is not very convincing; and what is the position if the whole
treaty has become inoperative? The point was to be raised in the leAO
Appeal case.
(2) The South West Africa case
The Court in 1962 had to deal with the objection of South Africa (upheld
by Judges Spender and Fitzmaurice) that, assuming the Mandate for South
West Africa was a treaty, 1 19 it was not a treaty 'in force' at the time when the
Court was seised. South Africa distinguished for this purpose between the
rights and obligations in relation to the administration of the territory,
which 'being of an objective character still exist', and the rights and obli-
gations relating to supervision, and to the jurisdiction of the Permanent
Court, which,
being of a contractual character, have necessarily become extinct on the dissolution
of the League of Nations which involved as a consequence the ending of member-
ship of the League, leaving only one party to the contract and resulting in the total
extinction of the contractual relationship. 120
This distinction was attributed by South Africa to the Court's 1950
opinion, which had emphasized, for example, that the Mandate was 'a new
international institution', and that
The object of the Mandate regulated by international rules far exceeded that of
contractual relations regulated by national law .121
The essence of South Africa's argument was that even if the obligations
found by the Court in its 1950 opinion to be then still in existence derived
from an instrument, the Mandate, which was of a contractual nature, it did
not follow that the Mandate, as a treaty or convention, was still in force.
Counsel drew the analogy with a treaty which has been replaced by a later
treaty which incorporates the same obligation as the earlier treaty; while the
obligations continue to exist, that does not mean that the earlier treaty is
still in force. 122
The Court however did not deal at all thoroughly with this argument: it
merely drew attention to the 1950 findings that the rights and obligations
119 Which was itself disputed: see the previous article in this Year Book, 62 (1991), pp. 5-8.
12.0 ICJReports, 1962, p. 333.
12.1 ICJ Reports, 1950, pp. 131, 132, quoted in South West Africa, Pleadings, vol. 7, pp. 14<)-50 (de
Villiers),
122. South West Africa, Pleadings, vol. 7, pp. 143-4 (de Villiers). It may be objected that to say that
the obligations are still in force is to beg the question: one could regard the current obligations as new
obligations having the same content.

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35
relating to supervision, and the compromissory clause, were still subsisting
and 'in force'. Judges Spender and Fitzmaurice, in their joint dissenting
opinion, criticized, with some justice, the majority judgment on this
ground:
The fact that the issue raised by the first Preliminary Objection is not whether
the mandate is simply 'in force', appears to have been completely lost sight of. The
issue arising on Article 37 of the Statute is whether the mandate is in force as a
treaty or convention. For this purpose it is not sufficient to rely on the Court's 1950
Opinion as establishing that the Mandate is, in any case, in force on an institutional
basis.
12
3
These two judges did not however uphold, or even discuss, the South
African argument as to the continuation of 'institutional' obligations after
the disappearance of the Mandate as a treaty; they based their view on the
more narrow ground that, even assuming the Mandate had been a 'treaty or
convention',
the parties, and only parties to it, were the mandatory and the league or its Coun-
cil. Since neither League nor Council exist now, the number of parties is less than
two, and therefore, as a treaty or convention, the Mandate is no longer in force.
12
4
This also was an argument which was not dealt with in the judgment of the
Court.
12
5
It is suggested that, whether or not correctly applied to the Mandate for
South West Africa, both these legal propositions are correct in theory; that
an obligation created by treaty may in some circumstances survive an event
whereby the treaty ceases to be 'in force'; 126 and that a treaty can no longer
be regarded as 'in force' if the number of parties to it is reduced below two.
(3) The Appeal relating to the Jurisdiction of the ICAO Council
The two parties in this case (India and Pakistan) were both parties to
(inter alia) the Chicago Convention on International Civil Aviation of
1944, but India maintained that, as a result of the hostilities which had
broken out between the two countries in August 1965, the Convention had
been suspended between the two parties and never as such revived. The
Court was seised under Article 84 of the Convention of an appeal by India
12
3 ICJ Reports, 1962, p. 495 (original emphasis).
12
4 Ibid., p. 503.
12
5 There is of course no obligation- on the Court, on the basis of ne infra petita or otherwise, to
examine and refute in its judgment the conflicting views expressed in the opinions of those of its Mem-
bers who dissent from the judgment. It is however frequently done; the convention is that the dissent-
ing judge is never referred to by name, but his argument is introduced by some such phrase as 'It has
been suggested that ... " 'It might be contended that ... '. The reason for this is simply that, techni-
cally, the opinion is a comment on an existing judgment, and does not exist in final form until the judg-
ment itself is final. In practical terms, this means that a judgment might reply to an argument in a draft
opinion, only to see that argument omitted from the final opinion, or the whole opinion withdrawn. On
the uses of individual opinions, see Rosenne, The Law and Practice of the International Court, vol. 2,
pp. 597-8; d. also Prott, The Latent Power of Culture and the lnternational Tudge (1979)'
126 Cf. Vienna Convention, Article 70(I)(b).

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6
against decisions of the ICAO Council on an application and a complaint
made against India by Pakistan. Pakistan contested the jurisdiction of the
Court, inter alia on the ground that
since it is one of India's principal contentions that the Treaties are not in force at all
(or at any rate in operation) between the Parties, (a) India cannot have any ius
standi to invoke their jurisdictional clauses for the purpose of appealing to the
Court, and (b) India must admit that the Court in any event lacks jurisdiction
under its own Statute because, in the case of. disputes referred to under treaties or
conventions, Article 36, paragraph I, of the Statute requires these to be 'treaties
and conventions in force' (emphasis added) ,-and India denies that the treaties and
conventions here concerned are in force, in the sense that she alleges that they are
at least suspended as between Pakistan and herself, or their operation is. I2.7
The Court rejected the objections of Pakistan for a number of reasons, of
which the first was as follows:
What India has affirmed is that the Treaties-which are multilateral ones-are
suspended (or that their operation is suspended) as between herself and Pakistan.
This is not the same thing as saying that they are not in force in the definitive sense,
or even that they have wholly ceased to be in force as between the two Parties con-
cerned.P''
What the Court meant by its reference to the Convention being 'not in
force in the definitive sense' is at first sight obscure. The subsequent refer-
ence to its being in force 'as between the two Parties concerned' suggests
that the distinction is between the continued existence of the Convention as
a multilateral treaty in force between a number of other States, and its con-
tinuance in force between India and Pakistan. It does not however seem
likely that the continuance in force of the Convention between other States
would justify India's invoking it against Pakistan if, or at a time when, it
was not binding on those two States.
The distinction which the Court had in mind is however made clearer in
the separate opinion of Judge Jimenez de Arechaga:
As to Articles 36 and 37 of the Statute of the Court, it would be difficult to con-
ceive that the Court might find that the Chicago Convention and the Transit
Agreement, ratified or adhered to by 120 and 17 States respectively, including both
Parties in the case, are not treaties or conventions 'in force'.
This is so even in the relations between the Parties in this case. What has been
claimed by India before the Court is that it has suspended those treaties vis-a-vis
Pakistan. The suspension of a multilateral treaty between two of its parties, while it
affects temporarily the operation of the treaty between them, does not affect the
maintenance in force of the treaty, among all the parties and even in the relations of
those two parties inter se. This is confirmed by various provisions of the Vienna
Convention on the Law of Treaties concerning 'suspension of operation' of treaties,
such as Articles 72 and 45. The latter provision, in particular, in its final part, dis-
tinguishes between the invalidity and termination, on the one hand, affecting the
12
7 ICJ Reports, 1972, pp. 52-3, para. 14.
128 Ibid., p. 53, para. 16, sub-para. (a).

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37
'maintenance in force' of a treaty, and suspension, on the other hand, only affecting
'the maintenance in operation' of a treaty.
12
9
The distinction intended would therefore seem to be between (a) a treaty
which is 'in force' and 'in operation' between two or more parties; (b) a
treaty which is not 'in force' between those parties, either because it has
never come into force or because it has been terminated; and (c) a treaty
which has been 'in force' between those parties but the operation of which
has been suspended. What then are the practical implications of this last
legal situation?
Presumably, so long as the treaty remains suspended, neither party can
insist on the other party's compliance with it, or complain of non-
compliance. To some extent, therefore, the situation is indistinguishable
from that in which the treaty has definitively ceased to be 'in force'. On the
other hand, the treaty relationship is not dead, but dormant, and can be
resurrected without the formalities of re-creation of a new treaty relation-
ship. In the case of a multilateral convention, there is also the position of
other States parties to be considered; presumably other States parties to the
Chicago Convention could each individually enforce, and were bound to
comply with, the Convention in their relationships with India and with
Pakistan.
What is not clear is how this bears on the issue before the Court: as
between India and Pakistan suspension of the Convention would create the
same hiatus as though the Convention had ceased to be in force in any sense
between them. To put the matter another way, the Convention was, when
the Court was seised, 'in force' in the same way as the Hispano-Belgian
Treaty relied on in the Barcelona Traction case was 'in force' in 1955
immediately before Spain became a Member of the United Nations; but it
was not 'in force' in the same sense as the Hispano-Be1gian Treaty was
when the Court was seized in that case.
The reason why the conundrum arose was of course the fact that the
Court was seised of an appeal. Pakistan, contending that the Convention
remained in force between the Parties, brought an Application before the
ICAO Council under Article 84; India, contending that the Convention
was not in force, because suspended, argued not only that this was so as a
matter of the merits, but also that the Council had no jurisdiction because
Article 84 was not operative between the Parties. So far, each Party's case
was perfectly consistent. Once the Council had rejected India's jurisdic-
tional objection, however, and held that Article 84 was a good ground for
jurisdiction, India could only exercise its right of appeal to the Court on the
basis of the very article which it had unsuccessfully sought to convince the
Council was inoperative as between India and Pakistan. Thus it was not
a case of a State seeking to block judicial examination of that State's
12
9 Ibid., p. 146, para. 17.

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8
purported suspension of a treaty on the 'bootstraps' argument that the sus-
pension abolished the jurisdictional clause; or more precisely, what was
involved was a recognition that, under the principle of the competence de fa
competence, the judicial body concerned could consider whether the sus-
pension had rendered inoperative also the jurisdictional clause. The pos-
ition of India before the Court was, to say the least, unusual, and it was
forced into it by the inexorable logic of the appeal structure.
In this light, the paragraph quoted above, giving the Court's first reason
for rejecting Pakistan's objection, seems rather unfortunate. In the first
place, while it is correct that India was not asserting that the treaties were
terminated between itself and Pakistan, but only that they were suspended
between the two parties, it was contending that the effect of the suspension
was that the treaties were not 'in force', so that the paragraph quoted comes
near to misrepresenting India's argument. Secondly, as the Court itself
emphasized.v'? it was not entitled to deal with the merits of the parties'
cases as presented to the ICAO Council; and the effect to be given to the
suspension of the treaties alleged by India was part of the merits. It is true
that the Court recognized that it could deal with such matters 'in so far as
those elements may relate to the purely jurisdictional issue which alone has
been referred to it'; but that it was not necessary for the Court to employ
the argument now being examined, which encroached on the merits, is
shown by the fact that it gave further reasons for dismissing Pakistan's
objection, of which the first was the following.
Nor in any case could a merely unilateral suspension per se render jurisdictional
clauses inoperative, since one of their purposes might be, precisely, to enable the
validity of the suspension to be tested. If a mere allegation, as yet unestablished,
that a treaty was no longer operative could be used to defeat its jurisdictional
clauses, all such clauses would become potentially a dead letter, even in cases like
the present, where one of the very questions at issue on the merits, and as yet unde-
cided, is whether or not the treaty is operative-i.e., whether it has been validly
terminated or suspended. The result would be that means of defeating jurisdic-
tional clauses would never be wanting. 13
1
This is an over-pessimistic view, because no assertion that the basic
treaty containing the compromissory clause had been suspended or termi-
nated could rob the relevant jurisdiction of the competence de fa com-
petence. It also--though here we are getting rather far from the question of
how a treaty is 'in force'-is rather sweeping in suggesting that compromis-
sory clauses may even survive the termination (not merely the suspension)
of a treaty; and in this respect contradicts the first argument, that of the dis-
tinction between a 'suspended' treaty and a treaty 'not in force'. These
matters will however be considered further below.
13 Ibid., pp. 51- 2 , para. II.
13
1
Ibid., pp. 53-4, para. 16, sub-para. (b).

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39
(4) The Nicaragua v. United States case
Mention should be made of the judgment of the Court at the jurisdic-
tional stage of the case concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), which
involved the interpretation of paragraph 5 of Article 36 of the Statute of the
Court. This paragraph concerns, however, not treaties but Optional Clause
declarations; 13
2
it reads:
Declarations made under Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as between the
parties to the present Statute, to be acceptances of the compulsory jurisdiction of
the International Court of Justice for the period which they still have to run and in
accordance with their terms.
I t was common ground that the declaration made by Nicaragua in 1929
could not have been invoked before the Permanent Court, because Nicara-
gua had never ratified the Protocol of Signature of the PCIJ Statute. When
the post-war Statute came into force, was that declaration one which was
'still in force'?
The reasons which led the Court to conclude that Nicaragua's declar-
ation was preserved and made an effective source of jurisdiction by Article
36, paragraph 5, will be examined more fully in a later article in the present
series, on 'Questions of Jurisdiction, Competence and Procedure'. The
matter was complicated by a discrepancy between the English and French
texts of the Statute, whereby 'still in force' corresponded to 'faites pour une
duree qui n'est pas encore expiree'. On this the Court commented:
the Court does not consider the French text to imply that La duree non expiree (the
unexpired period) is that of a commitment of a binding character. It may be
granted that, for a period to continue or expire, it is necessary for some legal effect
to have come into existence. But this effect does not necessarily have to be of a
binding nature. A declaration validly made under Article 36 of the Statute of the
Permanent Court had a certain validity which could be preserved or destroyed, and
it is perfectly possible to read the French text as implying only this validity. 133
This is in fact the essence of the Court's view; the Nicaraguan declaration,
even if it had no 'binding force', had some 'validity', and this validity was
preserved. (That, it may be objected, is not the point; was the 'validity' of
such a kind as to be what was contemplated by the term 'in force'?) The
Court buttressed its conclusions by reference to considerations drawn from
the conduct of the parties and States generally. All in all, the case is prob-
ably not of great weight in determining more generally the significance of a
treaty being, or not being, 'in force'.
'3
2
On the extent to which these are to be assimilated to treaty-texts, see the previous article, this
Year Book, 62 (1991).
133 ICJ Reports, 1984, p. 406, para. 30.

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2. The Claiming ofRights Entails Submission to the Corresponding
Obligations
In his first and second articles in the original series, Sir Gerald Fitz-
maurice drew attention, with reference to the South West Africa case, to the
rule that
a party to a treaty cannot claim rights under it, or rights which can only exist on the
basis of the treaty or be derived from it, without at the same time being willing to
discharge the corresponding obligations. 134
Still in the context of the Mandate for South West Africa, the Court in its
1971 advisory opinion in the Namibia case stated that
One of the fundamental principles governing the international relationship thus
established is that a party which disowns or does not fulfil its own obligations can-
not be recognized as retaining the rights which it claims to derive from the relation-
ship.135
Subsequent decisions of the Court have been such as to suggest that in
one respect it is necessary to qualify this statement of the rule: the right to
seise an international tribunal under the compromissory clause of a treaty is
not necessarily lost because of conduct inconsistent with, or amounting to a
repudiation or breach of, the treaty.
In the normal course of events, the party claiming the right to invoke the
compromissory clause will not be the party which is declining to perform its
obligations under the treaty; on the contrary the reason for invoking the
clause will probably be to seek a judicial remedy for such non-performance
by the intended respondent. The reverse situation can, however, occur.
The special circumstances of the ICAO Appeal case which brought it about
that lridia was applying to the Court on the jurisdictional basis of a treaty
which India itself claimed was suspended or terminated, have already been
discussed.F'" India was not willing to discharge, vis-vii-vis Pakistan, the
obligations imposed upon it by the Chicago Convention, since it contended
that these were no longer effective; but the Court was not prepared to say
that this disabled India from relying on the clause conferring jurisdiction
on the ICAO Council and the Court. The case was however argued, and
dealt with by the Court, more on the basis of the logical inconsistency attri-
buted to India's position than on the basis of such a rule as is here under
discussion, and which is one rather of equitableness, or equity in a broad
sense, than of logic.
However, in the case concerning Diplomatic and Consular Staff in
Tehran, the point arose in a more straightforward context than in the ICAO
134 This Year Book, 27 (1950), p. 8; 28 (1951), p. 26; Collected Edition, I, pp. 8, 67.
135 ICJ Reports, 1971, p. 46, para. 9I.
13
6
Above, Chapter III, section 1(3).

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Appeal. The United States based the Court's jurisdiction on, inter alia, the
compromissory clause in a Treaty of Amity, Economic Relations and Con-
sular Rights concluded with Iran in 1955. It was questioned whether,
having regard to certain counter-measures taken by the United States vis-a-vis
Iran, it is open to the United States to rely on the Treaty. 137
The Court pointed out that the actions in question, which were not them-
selves the subject of the dispute of which the Court was seised, had been
taken after, and in response to, what the United States regarded as viola-
tions by Iran of the Treaty; it added however that
In any event, any alleged violation of the Treaty by either party could not have the
effect of precluding that party from invoking the provisions of the Treaty concern-
ing pacific settlement of disputes. 13
8
In each of these cases, the non-performance attributed to the applicant
was related to the matter complained of in the conduct of the respondent;
but this is, it is suggested, irrelevant. The rationale of the rule is surely a
question of the intention of the parties. Where one obligation provided for
in a treaty is the quid pro quo for, or the counterpart of, the other, the par-
ties may be taken to have contemplated that neither party could insist on
the performance of the other's obligation while repudiating its own: in
effect, the exceptio non adimpleti contractus. The compromissory clause in
a treaty is however normally bilateral, so that until a dispute arises (and
perhaps not even thenr
39
it is not possible to say which party will benefit
from its presence in the treaty; and at the same time it will be a clause of
such a nature that the parties may be supposed to have intended it to
remain in force 'r'" whatever allegations of breach, suspension or termina-
tion of treaty may have been exchanged, specifically in order that such alle-
gations may be judicially tested. 14
1
This wider question of the special
'protected' status of the compromissory clause is considered further
below. 14
2
'37 Ie'] Reports, 1980, p. 28, para. 53. The argument here referred to does not appear to have been
advanced by Iran, but was put forward in the dissenting opinion of Judge Morozov, ibid., p. 52.
13
8
Ibid., p. 28, para. 53.
'39 Cf. Rosenne, Developments in the Law of Treaties, 1945-1986, pp. 261-2; Fitzmaurice, separate
opinion in Fisheries Jurisdiction, ICJ Reports, 1973, pp. 34-5, para. 20; pp. 78-<), para. 20.
'4 On provisions intended to survive extinction of the treaty, d. Capotorti, 'L'Extinction et la sus-
pension des traites', Recueil des cours, 134- (1971-III), pp. 45<)-60.
'4' This analysis does however prompt an interesting speculation regarding the 1961 Exchange of
Notes between Iceland and the two applicant States in the Fisheries Jurisdiction cases: the acceptance
by Iceland was, as the Court found, itself the counterpart or consideration for the commitment of those
two States to recognition of the Icelandic r z-rnile fishery zone (ICJ Reports, 1973, p. 18, para. 34, and
p. 62, para. 34; the point is put more clearly by Fitzmaurice, ibid., p. 29, para. 10, and p. 73, para. 10).
If one of them had gone back on that recognition, and insisted on fishing within the r z-mile zone, could
it have been argued that Iceland could repudiate the acceptance of jurisdiction? The question is aca-
demic, but not without interest.
'4
2
Below, Chapter V, section 5(2).

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3. Implied Powers in Treaty
In its advisory opinion on the Effect ofAwards of Compensation made by
the United Nations Administrative Tribunal, the Court quoted, and based
its reasoning on, the ruling in the Reparation for Injuries case that
Under international law, the [United Nations] Organization must be deemed to
have some powers which, though not expressly provided in the Charter, are con-
ferred upon it by necessary implication as being essential to the performance of its
duties. 143
This dictum was treated by Sir Gerald Fitzmaurice, in his discussion of
treaty law, as a matter of treaty interpretation: 144 specifically, as an example
of the application of Sir Gerald's Principle IV, the Principle of Effective-
ness.
14 5
It is suggested, however, that it has in fact little if anything to do
with interpretation.
In the Effect of Awards case, the Court noted the provisions of the
Charter concerning the Secretary-General and the staff of the organization,
and the way in which the Secretariat had in fact been created and organ-
ized. I t took the view that
it was inevitable that there would be disputes between the Organization and the
staff-members as to their rights and duties, 14
6
and noted that the Charter made no provision for settlement of such dis-
putes while ousting the jurisdiction of national courts (Article 105). It
accordingly concluded that
it would, in the opinion of the Court, hardly be consistent with the expressed
aim of the Charter to promote freedom and justice for individuals and with the con-
stant preoccupation of the United Nations Organization to promote this aim that it
should afford no judicial or arbitral remedy to its own staff for the settlement of any
disputes which may arise between it and them.
In these circumstances, the Court finds that the power to establish a tribunal, to
do justice as between the Organization and the staff members, was essential to
ensure the efficient working of the Secretariat, and to give effect to the paramount
consideration of securing the highest standards of efficiency, competence and inte-
grity. Capacity to do this arises by necessary intendment out of the Charter. 147
'43 Ie] Reports, 1949, p. 182.
'44 This Year Book, 28 (1951), pp. 18-19; Collected Edition, I, pp. 5cr60. He did however also
examine the matter also under the rubric of implied powers of international organizations: this Year
Book, 29 (1952), pp. 5-6; Collected Edition, I, pp. 74-5.
'45 For the present writer's comments on the operation of this principle during the period now under
review, see this Year Book, 62 (1991), pp. 44 ff.
14
6
Ie; Reports, 1954, p. 57. For anyone who has worked for an international organization, this
observation is indeed a truism.
'47 Ibid. It is interesting to observe in this connection that the Staff Regulations for the Registry of
the Court from 1946 to 1979 contained no more than a general provision for staff disputes to be settled
'according to the procedure which the Court may prescribe' (ICY Yearbook, 1946-1947, p. 68), and that
the more specific provision adopted in 1979 (ICY Yearbook, 1978-1979, p. 130) was adopted 'strictly as
provisional regulations and on a temporary basis' (ICY Yearbook, 1978-1979, p. 131); at the time of
writing, it is still in force on that basis. (See also Ruzie, 'La CIJ et la fonction publique inernationale',
International Law at a Time ofPerplexity (Melanges Rosenne), pp. 687-8.)

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The essence of this finding might be expressed in the adage, Who wills
the ends, wills the means. The intention of the framers of the Charter, as
expressed in that instrument, was that there should be a Secretariat, and
(presumably) one that worked efficiently. 14
8
To say that they therefore con-
templated and willed, and intended to convey by the language they used,
that an administrative tribunal should be established, is unrealistic, and, in
terms of interpretation, only defensible as a legal fiction. 149 The distinction
to be drawn is, as it were, temporal: in interpreting a treaty, one must place
oneself at the time when the treaty was concluded; but the question
whether particular powers are implied may be determined in relation to
events which happened many years after the date of the treaty. The need
for a United Nations Administrative Tribunal might have taken some time
to appear, 15 but in considering whether it had power to establish one, the
General Assembly did not have to limit itself either to the text of the
Charter, or to such intentions and expectations as might have been in
the minds of its signatories.
The Court in the Effect of Awards case had also to deal with the argu-
ment that
while an implied power of the General Assembly to establish an administrative tri-
bunal may be both necessary and essential, nevertheless, an implied power to
impose legal limitations upon the General Assembly's express Charter powers [sc.,
by making the decision of UNAT binding on the Assembly] is not legally admiss-
ible. lSI
The Court found that the suggested conflict between the implied powers
and the express powers did not in fact exist; but it may be conceded that a
power cannot be implied which would contradict an express provision of
the treaty in which it is said to be implied. In this respect, the criteria for
implication of powers coincide with those for treaty interpretation.
4- Third Parties and Treaties: pactum in favorem tertii
The 1986 judgment of the Chamber of the Court in the Frontier Dispute
case contained a statement of the principle that pacta tertiis nee nocent nee
prosunt . When considering whether it had jurisdiction to indicate the fron-
tier line between Burkina Faso and Mali right up to the tripoint with Mali,
the Chamber observed:
'4
8
This is not the same as interpreting a treaty 'in the light of its object and purpose' (Vienna Con-
vention, Art. 31, para. I). The object and purpose of the Charter was not the mere establishment of the
Secretariat!
'49 In this sense Skubiszewski, 'Implied Powers of International Organizations', International Law
at a Time of Perplexity (Metanges Rosenne) , pp. 860-1, who refers to the implication of powers as 'an
exercise in interpretation', but emphasizes that 'The process of implication should not be identified with
the discovery of the intention of the parties. The link of necessity unites the purpose, the function or the
power already granted to the power which is now implied.'
'So Though there was the existing precedent of the ILO Administrative Tribunal.
'5' Ie] Reports, 1954, p. 59.

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44
The Parties could at any time have concluded an agreement for the delimitation
of their frontier, according to whatever perception they might have had of it, and
an agreement of this kind, although legally binding upon them by virtue of the
principle pacta sunt servanda, would not be opposable to Niger.
1 5 2
The International Law Commission, in its Commentary on the draft
Articles on the Law of Treaties presented to the Vienna Conference, had
observed that
there appears to be almost universal agreement that in principle a treaty creates
neither obligations nor rights for third States without their consent.
On the other hand, the Commission went on to note that there was contro-
versy on 'the question whether a treaty may of its own force confer rights
upon a non-party'i '<' The recommendation of the Commission on the
point, referred to as the stipulation pour autrui, was contained in draft
Article 32, which became Article 36 of the Vienna Convention.
The Commission did not, for reasons which may be guessed at, refer to
what was then a recent decision of the Court which bore on the point. In its
second (1966) judgment in the South West Africa case, the Court was con-
cerned with the League of Nations Mandate for South West Africa, which
it had already (in 1962) determined was 'an instrument having the character
of a treaty or convention and embodying international engagements for the
Mandatory'. 154 The question of who were the parties to it is not free from
difficulty, but they may be taken to have been South Africa on the one side,
and either the Principal Allied and Associated Powers or the League of
Nations on the other. The various Mandates granted included what were
referred to as the 'special interests' provisions, whereby certain rights rela-
tive to the mandated territory were conferred upon members of the League
as individual States or in favour of their nationals; ISS in the case of the
Mandate for South West Africa these however amounted to no more than
freedom of access for missionaries. 15
6
In 1966, the Court was addressing itself to the question whether the two
applicant States had a 'legal right or interest in the subject-matter of their
claim', namely the performance by South Africa of its obligations under the
Mandate. The Court was satisfied that States which, like the applicants,
were Members of the League, were not as such parties to the Mandate.
The real position of the individual members of the League relative to the various
instruments of mandate was a different one. They were not parties to them; but
they were, to a limited extent, and in certain respects only, in the position of deriv-
ing rights from these instruments. Not being parties to the instruments of man-
date, they could draw from them only such rights as these unequivocally conferred,
15
2
Ie] Reports, 1986, p. 577, para. 46.
153 ILC Commentary, A/CONF.39/II/Add.2, p. 46, para. (1)(4)'
154 Ie] Reports, 1962, p. 331.
155 See the explanation in Ie] Reports, 1966, pp. 20-1, para. II.
15
6
Ibid.; Article 5 of the Mandate for South West Africa, reproduced in ICj Reports, 1962, p. 488.

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45
directly or by a clearly necessary implication. The existence of such rights could
not be presumed or merely inferred or postulated. IS?
The Court concluded that the only rights conferred on individual Members
of the League were those provided for in the 'special interests' clauses.
The jurisdictional clause in the Mandate did however extend to 'any dis-
pute whatever . . . between the Mandatory and another member of the
League'v'<" and the applicants argued that this conferred upon them a sub-
stantive right. The Court rejected this claim, but did recognize that
It is of course possible to introduce into such a clause extra paragraphs or
phrases specifically conveying substantive rights or imposing substantive obli-
gations . . . 159
Whatever view may be taken of the other parts of the 1966 South West
Africa judgment, in dealing with the question of stipulation pour autrui the
Court was, it is suggested, strictly orthodox.
Another decision of the Court during the period under review which
relates to a situation susceptible of classification as stipulation pour autrui
was the Monetary Gold case.t?? The 1951 Washington Statement was an
agreement between France, the United Kingdom and the United States;
but it conferred rights also on Italy, which Italy could accept and exercise
by taking specified action. The Court had, in the circumstances explained
above, to determine whether Italy had, in the terms of Article 36, para-
graph 2, of the Vienna Convention, complied with the conditions for the
exercise of its rights provided for in the Washington Statement.
A question which has attracted less attention is the effect for third parties
of the termination of a treaty containing a stipulation pour autrui in their
favour. The point did however arise in the Northern Cameroons case in
1963. The Court had occasion in that case to make some observations on
the question of the effects of the termination of a treaty, and in particular
the extent to which rights conferred by the treaty might survive its termina-
tion. The treaty in question was however one of a special kind: the Trustee-
ship Agreement for the Territory of the Cameroons under British
Administration, which had been terminated by the General Assembly on 1
June 1961, two days before the Court was seised of the case. Cameroon was
asking the Court to declare that the United Kingdom as trustee had com-
mitted breaches of the Trusteeship Agreement. What was in question was
therefore not the rights of one party to a terminated treaty and the corre-
sponding obligations of the other party, but the possible obligations owed
by a party to a third State by virtue of the treaty.
There was no controversy as to the effect in principle of the termination
of a treaty:
157 Ie] Reports, 1966, p. 28, para. 32.
15
8
Article 7: see IC] Reports, 1962, p. 488.
159 Ie., Reports, 1966, p. 39, para. 64.
160 Discussed above, Chapter II, section I ( I ).

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4
6
any rights which may have been granted by the Articles of the Trusteeship Agree-
ment to other Members of the United Nations came to an end.
1 6 1
The only exception specifically mentioned (though introduced with the
words 'for example') was vested rights:
property rights which might have been obtained in accordance with certain Articles
of the Trusteeship Agreement and which might have vested before the termination
of the Agreement;
these would not be divested by the termination. 162
The jurisdictional clause of the Trusteeship Agreement conferred a pro-
cedural right on Cameroon, as a United Nations Member, to institute pro-
ceedings. In this respect, the principle laid down in the Nottebohm case"?
clearly fell to be applied: since the proceedings had been instituted before
the Agreement was terminated, the subsequent termination did not operate
to divest the Court of jurisdiction.
The main thrust of the Court's decision was that any question of breach
by the trustee of the terms of the Trusteeship Agreement had become
'moot' with the termination of the Agreement: that even if the Court had
jurisdiction, it was inappropriate to exercise it, since
The Court finds that the proper limits of its judicial function do not permit it to
entertain the claims submitted.
16
4
The Court also considered that there was no need for it to go into the ques-
tion, also raised in the proceedings, whether
if during the life of the Trusteeship the Trustee was responsible for some act in vio-
lation of the terms of the Trusteeship Agreement which resulted in damage to
another Member of the United Nations or to one of its nationals, a claim for repa-
ration would not be liquidated by the termination of the Trust.
16
5
If reparation had been asked for, the case might have been otherwise; but
Cameroon had asked solely for a declaratory judgment.
The Court however, while stating that the point 'can have only an aca-
demic interest since the Trust is no longer in existence', did indicate'P"
what its conclusions would have been 'if it were common ground' that
Cameroon could enforce the Trusteeship Agreement in the same way as it
had been claimed that Ethiopia and Liberia could enforce the Mandate for
South West Africa.
16
7
161 IC] Reports, 1963, p. 34. Cf., as regards the parties, Vienna Convention, Article 70, para. I.
162. Ie] Reports, 1963, p. 34; as regards the parties, d. Vienna Convention, Article 70, para. I(b).
16
3 IC] Reports, 1953, p. III.
16
4 IC] Reports, 1963, p. 38.
16
5 Ibid., p. 35.
166 Ibid.
16
7 The Court did not put the point in this way, but the terms in which it did express itself clearly
pointed to the parallel with the South West Africa case.

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47
It would then follow that in filing its Application on 30 May 1961, the Republic
of Cameroon exercised a procedural right which appertained to it-a procedural
right which was to be exercised in the general interest, whatever may have been the
material individual interest of the Republic of Cameroon. But within two days after
the filing of the Application the substantive interest which that procedural right
would have protected, disappeared with the termination of the Trusteeship Agree-
ment with respect to the Northern Cameroons. After 1 June 1961 there was no
'trust territory' and no inhabitants for whose protection the trust functions could be
exercised. 168
The Court emphasized that as a result of the General Assembly's decision,
'the whole system of administrative supervision came to an end', and con-
tinued:
The Court cannot agree that under the circumstances the judicial protection
claimed by the Applicant to have existed under the Trusteeship System, would
have alone survived when all of the concomitant elements to which it was related
had disappeared. Accordingly, the Republic of Cameroon would not have had a
right after 1 June 1961, when the Trusteeship Agreement was terminated and the
Trust itself came to an end, to ask the Court to adjudicate at this stage upon ques-
tions affecting the rights of the inhabitants of the former Trust Territory and the
general interest in the successful functioning of the Trusteeship System.
16
9
This ruling is clearly obiter, and apparently confined to the special case of
a Trusteeship Agreement, but is still somewhat striking. Even if the claim
of international responsibility were an individual right to be 'exercised in
the general interest', why should the procedural right survive the termina-
tion of the Agreement, and the substantive right disappear? Any right to
compel continued compliance with the Trusteeship Agreement would pre-
sumably disappear once the Agreement itself came to an end; but why
should a claim for reparation for a prior violation of the Agreement also dis-
appear?
Circumstances in which the problem could arise are probably now very
unlikely to recur; but it is suggested that in principle, if a treaty creates
rights for a non-party, by way of stipulation pour autrui, those rights can-
not be extinguished by the termination of the treaty by consent of the par-
ties, unless there is also consent of the beneficiary third party. The rule
pacta tertiis nee noeent nee prosunt must be just as applicable to the agree-
ment to terminate the treaty as it was to the treaty itself. The existence or
otherwise of a jurisdictional link enabling the matter to be tested is irrel-
evant. In the specific case of the Trusteeship Agreement for the
Cameroons, it may well be argued that the General Assembly, which had
the authority under the Charter to terminate the Trusteeship, was also
empowered to extinguish any rights of individual Member States under the
.68 Icy Reports, 1963, p. 36.
r 69 Ibid.

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4
8
Agreement, acting on their behalf, and without their express consent. But
this power surely could not extend to extinguishing liability for reparation
already in principle owed by the trustee State to another individual
Member.
CHAPTER IV:
CONDUCT INCONSISTENT WITH A TREATY
1. Duty not to Deprive a Treaty ofits Object and Purpose?
A State which has signed and ratified a treaty is under an obligation to
carry out in good faith the obligations which by the treaty it has accepted;
this is the most obvious and elementary application of the principle pacta
sunt servanda. A State which has signed a treaty, or otherwise expressed
its consent to be bound by it, but has not yet ratified it, is also under an
obligation, according to Article 18 of the Vienna Convention on the Law of
Treaties (which may in this respect reflect customary law},"?" to refrain
from acts which would defeat the object and purpose of the treaty. Does
this latter obligation continue to exist after the State has become bound by
the treaty, in parallel to the obligation to comply with the terms of the
treaty itself? The question was raised by Nicaragua in the case brought
against the United States; and the Court in its 1986 judgment found that
the United States was guilty of breaches of such an obligation.
The treaty in question was the 1956 bilateral Treaty of Friendship, Com-
merce and Navigation between the two States, specific provisions of which
the United States was also accused of having breached.
The first claim which Nicaragua makes in relation to the Treaty is however one
not based directly on a specific provision thereof. Nicaragua has argued that the
United States, by its conduct in relation to Nicaragua, has deprived the Treaty of
its object and purpose, and emptied it of real content. For this purpose, Nicaragua
has relied on the existence of a legal obligation of States to refrain from acts which
would impede the due performance of any treaties entered into by them. However,
if there is a duty of a State not to impede the due performance of a treaty to which it
is a party, that is not a duty imposed by the treaty itself. Nicaragua itself apparently
contends that this is a duty arising under customary international law indepen-
dently of the treaty, that it is implicit in the rule pacta sunt servanda. This claim
therefore does not in fact fall under the heading of possible breach by the United
17 The International Law Commission regards this rule as 'generally accepted', citing the Certain
German Interests in Polish Upper Silesia case: Commentary on draft Articles,
p. 22. Contra, O'Connell, International Law, vol. I, pp. 223-4. See also Morvay in Zeitschrift fur aus-
liindisches offentliches Recht und Volkerrecht, 27 (1967), p. 451.

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49
States of the provisions of the 1956 Treaty, though it may involve the interpret-
ation or application thereof. 17
1
It will be observed that the Court says 'if there is a duty of a State not to
impede the due performance of a treaty ... " but does not here state in so
many words that such a duty does exist. The Court then goes on to examine
Nicaragua's specific claims, and concludes, in respect of some of them, that
the United States was in breach of such duty:
there are certain activities of the United States which are such as to undermine the
whole spirit of a bilateral agreement directed to sponsoring friendship between the
two States parties to it. 17
2
The activities so singled out by the Court were stigmatized as follows:
Any action less calculated to serve the purpose of. 'strengthening the bonds of
peace and friendship traditionally existing between' the Parties, stated in the
Preamble of the Treaty, could hardly be imagined. 173
Since the actions in question were direct attacks by US-financed mercenar-
ies on Nicaraguan ports, oil installations, etc., and the mining of Nicara-
guan ports, this conclusion can hardly be disputed.
On other Nicaraguan claims, of 'acts of economic pressure', the Court
drew distinctions.
A State is not bound to continue particular trade relations longer than it sees fit
to do so, in the absence of a treaty commitment or other specific legal obligation;
but where there exists such a commitment, of the kind implied in a treaty of friend-
ship and commerce, such an abrupt act of termination of commercial intercourse as
the general trade embargo of I May 1985 will normally constitute a violation of the
obligation not to defeat the object and purpose of the treaty. The 90 per cent cut in
the sugar import quota of 23 September 1983 does not on the other hand seem to
the Court to go so far as to constitute an act calculated to defeat the object and pur-
pose of the Treaty. The cessation of economic aid, the giving of which is more of a
unilateral and voluntary nature, could be regarded as such a violation only in
exceptional circumstances ... As to the opposition to the grant of loans from
international institutions, the Court cannot regard this as sufficiently linked with
'7' IeJ Reports, 1986, p. 135, para. 270. The careful distinction made in the last sentence seems to
have been overlooked by Reisman, who speaks of the Court interpreting the Treaty broadly, even reach-
ing 'implied' matters that also became subject to the jurisdictional clause in the Treaty, and as having
developed a 'theory of implication': 'The Other Shoe Falls: The Future of Article 36(1) Jurisdiction in
the Light of Nicaragua', American Journal of International Law, 81 (1987), pp. 168, I7I. Similarly
Judge Oda regards the Court's action as exceeding its powers under the comprornissory clause (ICY
Reports, 1986, p. 249); but the Court explained that it was acting on the basis of the Optional Clause
declarations: ICY Reports, 1986, pp. 135-6, para. 271. Judge Sir Robert Jennings clearly takes the
point: ICY Reports, 1986, pp. 539-40. The last sentence of the passage quoted suggests that the Court
would have had jurisdiction under the compromissory clause to interpret the treaty for the purposes of
the alleged duty not to impede its performance, but not to declare the existence of a breach of that duty.
'7
2
1(.' Reports, 1986, p. 138, para. 275.
'73 Ibid. There is a certain irony here, of which the Court can hardly have been unaware, since the
treaty was concluded with the earlier regime in Nicaragua, and actions subsequent to the fall of that
regime, on the part of both Governments, had been such as to put considerable strain on 'the bonds of
peace and friendship' between the States.

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the 1956 FeN Treaty to constitute an act directed to defeating its object and pur-
pose."?"
What then is the nature of the duty not to impede the due performance of
a treaty? In the first place, the Court emphasized, in the first passage
quoted above, that it 'is not a duty imposed by the treaty itself'. In other
words, it is not a question of giving a wide interpretation to the actual terms
of the treaty, in the name of the principle of effectiveness.T" The Court
quotes, apparently with approval, the submission of Nicaragua that 'this is
a duty arising under customary international law independently of the
treaty, that it is implicit in the rule pacta sunt servanda'. The obligation
itself is of its nature not part of the pactum, but probably what is meant is
that the duty is implicit in the rule that treaties are to be performed in good
faith. It is clearly inconsistent with good faith to take away with one hand
what is given, in compliance with a treaty, with the other.
In argument before the Court, counsel for Nicaragua had prayed in aid
the Third Report of Sir Humphrey Waldock for the International Law
Commission on the Law of Treaties; Sir Humphrey's draft articles had
included a provision that
good faith, inter alia, requires that a party to a treaty shall refrain from acts calcu-
lated to prevent the due execution of the treaty or otherwise to frustrate its
objects. 17
6
This provision was not adopted by the Commission, which
considered that this obligation is implicit in the obligation to perform the treaty in
good faith. Preferring to state the pacta sunt servanda rule in as positive and sim-
ple a form as possible, it decided not to spell out in the article this secondary aspect
of the rule.
The inclusion of reference to the existence of such an obligation prior to
entry into force of a treaty in Article 17 of the draft (Article 18 of the Con-
vention) was justified by
the fact that in the circumstances there stated the treaty is not as such binding on
the parties; and the case is quite different when the treaty itself is binding on the
parties. In short, the Special Rapporteur shares the view of the Commission that
this obligation is implicit in the pacta sunt servanda rule as formulated in the pres-
ent article. 177
This decision shows that the existence of a duty of the kind asserted by
Nicaragua is dependent on the existence of a pactum, but the duty is itself
not part of the pactum; the argument is that to servare a pactum, the par-
174 Ibid., p. 138, para. 276.
175 Cf. the previous article in this series, this Year Book, 62 (1991), pp. 44-8. It would appear to fol-
low that breach of an obligation of this kind, unaccompanied by any breach of treaty itself, would not
give rise to the exceptio non adimpleti contractus, and both partners would remain bound to continue to
perform the treaty.
17
6
ILC Yearbook, 1964, vol. 2, p. 7.
177 ILC Yearbook, 1966, vol. 2, p. 61.

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51
ties to it must do more than merely fulfil its express terms. Another possible
approach would have been reliance on an implied term, similar to the clau-
sula rebus sic stantibus formerly invoked to justify termination for change
of circumstances, to the effect that each party undertook to refrain from
acts which would defeat the object and purpose of the treaty. 17
8
This
alternative reasoning would keep the obligation within the ambit of the
treaty, for jurisdictional or other purposes.
The discussion proceeds on the apparent basis that the duty may be
expressed indifferently either as a duty not to 'deprive a treaty of its object
and purpose' and 'empty it of real content', or as a duty to 'refrain from acts
which would impede the due performance' or 'acts calculated to prevent the
due execution of the treaty or otherwise to frustrate its objects'. But are
these identical in practice? And do they correspond to the terminology of
Article 18 of the Vienna Convention, relating to as yet unratified treaties-
limited to refraining 'from acts which would defeat the object and purpose'
of the treaty? To 'impede' the performance may be merely to make such
performance more difficult, not necessarily to make it impossible; and to
'impede' the performance of some part of a treaty may have a marginal
effect on the achievement of its object and purpose.
I t may be enlightening to consider more closely the specific acts which
the Court found to constitute breaches of this duty. So far as the attacks on
ports and oil installations, and mining of ports, were concerned, these were
in any event breaches of general international law, as the Court had already
found earlier in its judgment. To classify them as breaches of a duty not to
impede the performance of a treaty may be intellectually orderly, but adds
nothing effective. The Court did not indicate in what way these acts
impeded the performance of any specific provisions of the FCN Treaty; it
classified them rather as contrary to the object and purpose of the Treaty.
A special feature of the case was that the treaty relied on was a treaty of
friendship; as a result
it appears that in Nicaragua's contention the Court could on this ground make a
blanket condemnation of the United States for all the activities of which Nicaragua
complains on more specific grounds. 179
The Court was not prepared to go anything like as far as this:
In other words, the Court is asked to rule that a State which enters into a treaty of
friendship binds itself, for so long as the Treaty is in force, to abstain from any act
toward the other party which could be classified as an unfriendly act, even if such
act is not in itself the breach of an international obligation. Such a duty might of
course be expressly stipulated in a treaty, or might even emerge as a necessary
implication from the text; but as a matter of customary international law, it is not
clear that the existence of such a far-reaching rule is evidenced in the practice of
'7
8
In its memorial, Nicaragua presented the obligation asserted more as one derived from the Treaty
itself: 'in its totality and in light of the full range of intentions expressed by the Parties ... the Treaty
imposes a legal obligation of "friendship" between the parties' (Nicaraguan memorial, para. 410).
'79 ICY Reports, 1986, p. 136, para. 273.

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States. There must be a distinction, even in the case of a treaty of friendship,
between the broad category of unfriendly acts, and the narrower category of acts
tending to defeat the object and purpose of the Treaty. That object and purpose is
the effective implementation of friendship in the specific fields provided for in the
Treaty, not friendship in a vague general sense. 180
As to the 'acts of economic pressure', it is clear from the last sentence of the
passage quoted above that, despite the wide-ranging possibilities afforded
by the Preamble to the Treaty, with its reference to 'strengthening the
bonds of peace and friendship', the Court did require some link between
the action complained of and the specific provision of the Treaty. Unfortu-
nately, the Court did not spell out either what provisions of the Treaty
would be impeded, or made impossible by the acts of economic pressure, or
in what precise respect the object and purpose of the Treaty would be
'defeated' by them.
The only specific qualification which the Court attached to the possibility
that a State may be liable for actions which may defeat the object and pur-
pose of a treaty was the following:
In the view of the Court, an act cannot be said to be one calculated to deprive a
treaty of its object and purpose, or to impede its due performance, if the possibility
of that act has been foreseen in the treaty itself, and it has been expressly agreed
that the treaty 'shall not preclude' the act, so that it will not constitute a breach of
the express terms of the treaty. 181
This is evidently reasonable; but the effect is striking. If an act which the
parties do not wish to forbid is sufficiently close to the definition in the
treaty of acts which it is to forbid, provision may be made that the treaty
'does not preclude' such action; and in such case it cannot be caught as
'action likely to defeat the object and purpose'. If however action in the
same sphere is thought to fall right outside the treaty's prohibitions, it will
not be mentioned; and then there may be a risk that it may be found to be
calculated to 'defeat the object and purpose'.
Judge Oda regarded the Court's approach as founded on a misconception
of the words 'the object and purpose of a treaty' in the Vienna Convention.
He also makes the following cogent criticism:
Independently of that Convention, it is noted that the Court attributes to Nicar-
agua an argument to the effect that abstention from conduct likely to defeat the
object and purpose of a treaty is an obligation implicit in the principle pacta sunt
servanda. However, the Judgment does not make it clear whether it is espousing
this point of view. In any case, I would like to take this opportunity of indicating
my own understanding of this principle, which to my mind requires compliance
with the letter of obligations subscribed to, and not necessarily the avoidance of
conduct not expressly precluded by the terms of the given treaty. It may further-
more be asked where the jurisdiction granted by a treaty clause would ever end if it
180 Ibid., pp. 136-7, para. 273.
181 Ibid., p. 136, para. 272 .

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were held to entitle the Court to scrutinize any act remotely describable as inimical
to the object and purpose of the treaty in question. The ultimate result of so sweep-
ing an assumption could only be an increasing reluctance on the part of States to
support the inclusion of such clauses in their treaties. 182
The whole concept of an obligation, existing alongside a treaty imposing
specific rights and duties, to 'favour' the treaty may, it is suggested, be
regarded as an innovation of doubtful validity; there is no evident support
for it in customary law, and it is a doctrine which could lead to unexpected
results. The traditional view would be that outside the obligations expressly
or impliedly laid down by a treaty, a State is free to act as it sees fit (assum-
ing no other specific rule of law is breached), even if its action has unfa-
vourable effects on its treaty-partner in the area to which the treaty relates.
This view is supported by the interpretation given by the Court in the
leADAppeal case to Article I I, Section I, of the International Air Services
Transit Agreement:
whatever may be the exact legitimate range of a 'complaint' made under Section I,
its primary purpose must be to permit redress against legally permissible action
that nevertheless causes injustice or hardship. In other words, the basic situation
contemplated by Section I is where a party to the Agreement, although acting
within its legal rights under the Treaties, has nevertheless caused injustice or hard-
ship to another party-a case not of illegal action-not of alleged breach of the
Treaties-but of action lawful, yet prejudicial.
18
3
The Court does not seem to have contemplated the possibility that a State
which, while 'acting within its legal rights under the Treaties', caused
'injustice or hardship' to another party, might be acting unlawfully, inas-
much as its action might well be classified as such as to 'deprive the treaty of
its object and purpose', 'empty it of real content', or 'impede the due perfor-
mance' of the treaty. On the contrary, the Court, in the passage quoted,
emphasized that, notwithstanding the injustice or hardship, the action is
not illegal.
18
4
I t may be that such a duty as is postulated can in fact only operate in
respect of a treaty of friendship, or similar instrument where specific com-
mitments are accompanied by wider professions (and it is hoped, inten-
tions) of goodwill; but even in this context, doubts must arise. The parties
to the US/Nicaragua Treaty may well have decided that, notwithstanding
182 Ibid., p. 250, para. 8I.
18
3 Ie; Reports, 1972, p. 58, para. 20.
18
4 It is not suggested that the Court could have made a finding that there had been action calculated
to deprive the treaty of its object and purpose; the jurisdictional clause relied on did not extend to alle-
gations of breaches of customary law. Similarly, in the Hostages case, where what was involved was
(inter alia) a Treaty of Amity, Economic Relations and Consular Rights, the Court carefully defined
the articles violated by Iran's conduct, without alluding to the possibility that that conduct could have
been dealt with as flagrantly in breach of an obligation not to deprive the treaty of its object and pur-
pose; but again there was no jurisdiction to make any finding to that effect.

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the cooling of their relations resulting from the change of Government,
18
5 it
was to their advantage to maintain the specific arrangements agreed on in
the Treaty; but neither of them can have seriously expected the other to
behave-let alone to be legally obliged to behave-as though there had
been no change in their political relationship.
2. Breach of Treaty: the Relevance ofMunicipal Law
As the Permanent Court observed in the Greco-Bulgarian Communities
case,
it is a generally accepted principle of international law that in the relations between
Powers who are contracting Parties to a treaty, the provisions of municipal law can-
not prevail over those of the treaty. 186
This of course by no means exhausts the problems which can arise in the
relationship between a treaty obligation and the provisions of the municipal
law of one of the parties to the treaty.
In the Guardianship of Infants case, it was the actual implementation of
Swedish municipal law, specifically its application to a Dutch national,
which was, in the contention of the Netherlands, a breach of treaty.
Whether the Swedish law had, according to its own requirements, been
complied with was not the Court's concern:
The dispute upon which the Court is called on to adjudicate has been clearly
defined by the Parties in their Pleadings and oral arguments. The Court had before
it a concrete case: did the Swedish authorities, by applying the measure of protec-
tive upbringing (skyddsuppfostran) to the Dutch infant, Marie Elizabeth Boll, fail
to respect obligations resulting from the 1902 Convention on the guardianship of
infants? The task of the Court is thus limited. It is not concerned with the correct-
ness of the application of the Swedish Law of June 6th, 1924, on the protection of
children and young persons, nor has it to pass upon the proper appreciation of the
grounds on which the challenged decisions are based, or on the circumstances to
which those grounds are related.
18
7
The Elettronica Sicula SpA (ELSI) case has already been discussed in
the context of the supremacy of international law over municipal. law, 188
but repays further examination in the specific context of breach of treaty; it
18
5 On this, see the enumeration of 'unfriendly' acts by Nicaragua in the dissenting opinion of Judge
Schwebel: ICJ Reports, 1986, pp. 386-7, para. 253. It is worth remarking that while there was agree-
ment in the International Law Commission that a change in the policy or attitude of a Government
could not be invoked as a 'fundamental change of circumstances', it was observed that there might be
cases 'where a radical change of political alignment by the Government of a country might make it
unacceptable,jrom the point ofview ofboth parties, to continue with the treaty': A/CONF.39/II/Add.2,
p. 79 (emphasis original). The context of an alleged obligation not to defeat the object and purpose of a
treaty would seem to be an a fortiori case.
186 PCI], Series B, No. 17, p. 32; see also the previous article in this series, this Year Book, 60
(1989), pp. 114 ff. The rule is codified in Article 27 of the Vienna Convention, with a qualification as to
manifest violation of internal law regarding competence to conclude treaties (Article 46).
18
7 ICJ Reports, 1958, p. 62.
188 This Year Book, 60 (1989), pp. II6-q.

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involved the problem of the relevance, to the question whether a particular
act is a breach of treaty, of the conformity or otherwise of that act with the
appropriate municipal law.
The Chamber in the ELSI case stated, as a dictum of principle:
Compliance with municipal law and compliance with the provisions of a treaty
are different questions. What is a breach of treaty may be lawful in the municipal
law and what is unlawful in the municipal law may be wholly innocent of violation
of a treaty provision.
18
9
This appears at first sight to be something of a truism;"?" and not to cor-
respond strictly to the problem which the Chamber was discussing, which
was the following. The United States complained that the requisition by
the Mayor of Palermo of the factory and plant of the US-controlled ELSI
company was a breach of an article of a Treaty of Friendship, Commerce
and Navigation which conferred on the nationals and corporations of each
party the right to 'organize control and manage' corporations of the other
party, 'in conformity with the applicable laws and regulations' of the latter
party.
It was argued by Italy that this clause confirms that the correct interpretation of
that paragraph is that it was not intended to confer upon United States nationals
any rights of control and management more extensive, or more extensively pro-
tected, than those enjoyed by other stockholders, of whatever nationality, in Italian
companies. Therefore, it was said, the requisition was no breach of the rights con-
ferred by the FCN Treaty because it ... 'was issued by the competent authority
on a regular legal basis'. 19
1
The question was therefore not one of the relationship between treaty
law and municipal law in general, but the interpretation of the FCN Treaty
in particular. If the meaning of the treaty was that the nationals of each
party were to be placed on a footing of equality with the nationals of the
other, then compliance by the authorities of each party with its own local
law would be all that could be insisted on, at least under the treaty. If how-
ever the treaty meant that the nationals of each party had rights which
could be backed by diplomatic protection, and international complaint
could be made, on the basis even of action strictly in accordance with local
law, to which all other persons would have to submit, then it would be cor-
rect that municipal law would be irrelevant to the question whether there
18
9 IC] Reports, 1989, p. 51, para. 72.
'9 Cf. the observations made in the Barcelona Traction judgment on the relationship between inter-
national law and municipal law: Ie) Reports, 1970, pp. 33-4, para. 38; p. 37, para. 50. F.A. Mann,
while recognizing that 'illegality under a municipal system of law does not necessarily entail illegality in
international law', is disturbed by the realization, prompted by the ELSI decision, that 'customary
international law in general, and particularly, treaties designed, inter alia, to protect foreign investment
and trade should fail to condemn acts which, for instance, on the ground of administrative excess or
detournement de pouooir, the legal systems of civilized nations consider illegal': 'Foreign Investment in
the International Court of Justice: the ELSI Case', Amencan foumal of International Law, 86 (1992),
P95
'9' IC] Reports, 1989, p. 50, para. 71.

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were a breach of treaty. It is slightly disturbing to note that the dictum
quoted from the Chamber's judgement suggests that it was starting with a
presumption that the latter was the correct interpretation of the FCN
Treaty.
I t does not follow that because rights exercisable in the territory of one
State are conferred on nationals of another State by an international instru-
ment, those rights are therefore 'more extensive, or more extensively pro-
tected' than those of the local inhabitants. This appears to have been the
view of Judge Oda, when he emphasized in his separate opinion in the
ELSI case that
I t is a great privilege to be able to engage in business in a country other than one's
own."?"
I t is because this is so that it is in itself an achievement for a treaty to secure
rights for one State's nationals which, exercisable in the territory of another
State, are at the mercy of the legislator of that State-provided equality
with local citizens is preserved; it is not necessary to presume that rights
conferred by treaty must be invulnerable within the municipal-law sphere.
The actual holding of the Chamber on the point is not entirely clear, but
appears to be that the FCN Treaty did not confer exorbitant rights on US
nationals to control and manage corporations in Italy. This may be deduced
from the following passage:
This question whether or not certain acts could constitute a breach of the treaty
rights to be permitted to control and manage is one which must be appreciated in
each case having regard to the meaning and purpose of the FCN Treaty. Clearly
the right cannot be interpreted as a sort of warranty that the normal exercise of con-
trol and management shall never be disturbed. Every system of law must provide,
for example, for interferences with the normal exercise of rights during public
emergencies and the like. 193
After examining the local legislation on the point, the Chamber concluded
that
The requisition was thus found not to have been justified in the applicable local
law;
and therefore, if it interfered with management and control, 'it might
appear prima facie a violation194 of the relevant treaty provisions.
The implication of the reference to emergency powers in 'every system of
law'-i.e., of municipal law-clearly points to the treaty rights being no
more than a right to 'equal protection under the law'; on this basis, if the
requisition had been in accordance with local law, that would, it seems,
have been the end of the matter. Thus, as far as this particular treaty pro-
192 Ibid., p. 90. Equal protection of foreigners under the law may however be necessary as an encour-
agement to trade: d. Shakespeare, The Merchant of Venice, Act 111, Scene 3, lines 26-31.
193 Ie] Reports, 1989, p. 51, para. 74.
194 Ibid., p. 52, para. 75.

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57
vision was concerned, it was not the case that 'what is a breach of treaty
may be lawful in the municipal law'. The other half of the Chamber's dic-
tum did however find application: the words 'prima facie' in the passage
just quoted show that
what is unlawful in the municipal law may be [but may well not be!] wholly inno-
cent of violation of a treaty provision.
In short, the Chamber did not, contrary to appearances, start from a pre-
sumption of the exorbitant effect of treaty provisions of this kind; and the
dictum quoted at the opening of this section is not to be given weight as a
statement of principle.
Another article of the FCN Treaty the interpretation of which was in
question in the ELSI case dealt specifically with the question of the rela-
tionship between the treaty requirements and municipal law, but intro-
duced an additional element, that of general (i.e., customary) international
law. Article V, paragraph I, provided (in part) that
The nationals of each High Contracting Party shall receive, within the territories
of the other High Contracting Party, the most constant protection and security for
their persons and property, and shall enjoy in this respect the full protection and
security required by international law ... 195
So far the Treaty appears to be no more than declaratory, since 'the full
protection and security required by international law' would ex hypothesi
be enjoyed even if there were no Treaty. Article V, paragraph 3, however,
adds to this the following:
The nationals, corporations and associations of either High Contracting Party
shall within the territories of the other High Contracting Party receive protection
and security with respect to the matters enumerated in paragraphs I and 2 of this
Article, upon compliance with the applicable laws and regulations, no less than the
protection and security which is or may hereafter be accorded to the nationals, cor-
porations and associations of such other High Contracting Party and no less than
that which is or may hereafter be accorded to the nationals, corporations and
associations of any third country ... 19
6
Thus, setting aside the most-favoured-nation clause, the protection and
security to be provided was to meet whichever was the more demanding of
two criteria: the treatment afforded nationals of the (eventual) respondent
State, and the 'international standard'.
After examining the facts relied on to establish the alleged failure to
afford protection and security, in particular the occupation of the ELSI
plant by the workers, the Court concluded that there was no falling-short of
the standards set by the Treaty. On the particular point of the relevance of
municipal law as reflected in decisions of the local courts the Court declared
that:
195 Ibid., p. 63, para. 103.
19
6
Ibid.

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58 THE LAW AND PROCEDURE OF
The mere fact that the occupation was referred to by the Court of Appeal of
Palermo as unlawful does not, in the Chamber's view, necessarily mean that the
protection afforded fell short of the national standard to which the FCN Treaty
refers. The essential question is whether the local law, either in its terms or its
application, has treated United States nationals less well than Italian nationals.
This, in the opinion of the Chamber, has not been shown. 197
This might appear to mean that foreign nationals who can rely on a treaty
provision ensuring equality with local inhabitants must still take the rough
with the smooth-that since unlawful acts are sometimes suffered by citi-
zens of the respondent State, it follows that the commission of unlawful (in
municipal law) acts against nationals of the applicant State is not necess-
arily a breach of treaty. 19
8
On reflection, it will be apparent that this is not a
possible interpretation: the State exists to ensure security and protection
from wrong for those on its territory; it is common experience that unlaw-
ful acts are committed, but each such act still represents a failure by the
State. The obligation assumed by the treaty is however not that of an
insurer: 199 as the Chamber observed,
The reference in Article V to the provision of 'constant protection and security'
cannot be construed as the giving of a warranty that property shall never in any cir-
cumstances be occupied or disturbed. 200
The question is whether the authorities of the respondent State acted con-
scientiously to endeavour to prevent unlawful acts, alleviate their effects if
committed and, if appropriate, to afford compensation? The finding of the
Chamber, preceding the reference to the findings of the local courts, was
that:
In any event, considering that it is not established that any deterioration in the
plant and machinery was due to the presence of the workers, and that the auth-
orities were able not merely to protect the plant but even in some measure to con-
tinue production, the protection provided by the authorities could not be regarded
as falling below 'the full protection and security required by international law' ; or
indeed as less than the national or third-State standards. 201
197 Ibid., p. 65, para. 108.
19
8
In the absence of 'specific treaty provision, as Fitzmaurice has stated, 'it is the case that in a dis-
pute in the courts of any given country between individuals or companies, one or both of which are of
foreign nationality, and also (in many cases) in an ordinary litigation between a foreigner and the local
Government, no international claim will lie merely on the ground (a) that the foreigner loses his case,
and (b) that the decision is in fact wrong or mistaken under the local law, and ought to have been in his
favour; provided that no denial of justice, in the proper acceptation of that term in relation to a judicial
decision, is involved-e-i.e., provided the decision, though mistaken, was given honestly and in good
faith by a properly constituted and normally competent court' (,Hersch Lauterpacht-the Scholar as
Judge', I, this Year Book, 37 (1961), p. 57; Collected Edition, II, p. 690).
199 The position is of course the same in general international law: 'when a State admits into its terri-
tory foreign investment or foreign nationals it is .. . bound to extend to them the protection of the
law. However, it does not thereby become an insurer of that part of another State's wealth which these
investments represent. Every investment of this kind carries certain risks. The real question is whether
a right has been violated ... ' (Barcelona Traction, ICJ Reports, 1970, p. 46, para. 87).
:;000 ICJ Reports, 1989, p. 65, para. 108.
:;001 Ibid.

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3. The Doctrine ofApproxirnate Application following a Breach of Treaty
The term 'doctrine of approximate application' was devised by Rosenne"?"
to define a principle adumbrated in the separate opinion of Judge Lauterpacht
in the case concerning Admissibility of Hearings of Petitioners by the Com-
mittee on South West Africa, 23 It applies, semble, only to treaties, normally
multilateral conventions, establishing a 'regime in the nature of an objective
law'; in the case in question, this was constituted by the international status of
South West Africa. In the view of Lauterpacht,
The second principle of law of general import in the present case is connected
with the nature of the regime of the territory of South West Africa as declared in
the Opinion of II July 1950. Inasmuch as that Opinion laid down, by reference to
the Covenant of the League of Nations and the Charter of the United Nations, the
status of South West Africa-a regime in the nature of an objective law which is
legally operative irrespective of the conduct of the Union of South Africa-that
status must be given effect except in so far as its application is rendered impossible,
in terms of its general purpose, having regard to the attitude adopted by the Union.
To that extent there are permissible such modifications in its application as are
necessary to maintain-but no more-the effectiveness of that status as contem-
plated in the Court's Opinion of 1950. It is a sound principle of law that whenever a
legal instrument of continuing validity cannot be applied literally owing to the con-
duct of one of the parties, it must, without allowing that party to take advantage of
its own conduct, be applied in a way approximating most closely to its primary
object. To do that is to interpret and to give effect to the instrument-not to
change it, 24
This definition poses a problem which is familiar in another field, that of
termination of treaties for fundamental change of circumstances: is the sug-
gested principle the application of a presumed intention of the parties to the
treaty, an implied term; or is it a rule of general law, applicable to all
treaties of the appropriate kind, except possibly on proof of a contrary
intention? At the beginning of the passage cited, Lauterpacht seems to be
favouring the latter view, but his final sentence places the rule squarely in
the domain of treaty interpretation.Y"
Did the Court itself in its advisory opinion endorse, expressly or by
implication, the principle stated in the opinion of Judge Lauterpacht? It
202 Breach of Treaty (Cambridge, 1985), pp, 95.... ror ,
23 ICJ Reports, 1956, p. 23, The question put to the Court was whether it was consistent with the
Court's 1950 advisory opinion for the Committee on South West Africa 'to grant oral hearings to pet-
itioners on matters relating to the Territory'. Responsibility for the etymologically incongruous
expression 'oral hearings' is to be attributed to the General Assembly, not to the Court.
24 ICY Reports, 1956, p. 46,
25 This is confirmed by a passage later in his opinion, in which, considering the situation 'of a party
refusing to recognize or act upon a legal instrument which purports to express the legal obligations of
that party and whose validity must be regarded as continuing', he considered it 'in accordance with good
faith and common sense' to 'interpret the instrument as continuing in validity and as fully applicable
subject fa reasonable readjustments calculated to maintain the effectiveness, though not more than that,
of the major purpose of the instrument' (ICY Reports, 1956, pp. 55-6). Cf. also the comment of Sir
Gerald Fitzmaurice, 'Hersch Lauterpacht-the Scholar as Judge', III, this Year Book, 39 (1963), pp.
181-2; Collected Edition, II, pp, 837-8,

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60
does not appear so. The entitlement of a party to perform acts of 'approxi-
mate application' of a treaty repudiated by the other party would only have
a real meaning if the performance of those acts, rather than the acts
expressly contemplated by the treaty, affected the position of the other
party. The Court was however at pains to refute the suggestion that 'the
grant of oral hearings to petitioners would, in fact, add to the obligations of
the Mandatory, and thus lay upon it a heavier burden than it was subject to
under the Mandates System'. 206 Judge Lauterpacht, on the other hand, was
of the opinion that, 'in normal circumstances', the grant of hearings would
result in exceeding the degree of supervision as actually applied under the
Mandates system;"?
The doctrine has not been relied on in argument in subsequent cases
before the Court, nor have the facts of those cases been such as to afford the
Court an opportunity of considering its application. The termination of the
Mandate for South West Africa was found by the Court, in the Namibia
advisory opinion, to have been legally justified on other grounds; and it is
in any case doubtful whether a principle designed to permit the continued
operation of a treaty could be relied on to justify its termination. The situ-
ation between India and Pakistan which formed the background to the
leAD Appeal case, whereby overflights by non-military aircraft continued
to be authorized, notwithstanding an asserted suspension or termination of
the Chicago Convention and Transit Agreement, might have been defined
in terms of 'approximate application'; but the substance of the dispute was
not before the Court for decision. The case for inclusion of the doctrine
in positive international law must be regarded as, for the present,
unproved. 208
4. Breach of Treaty and Implementation of Compromissory Clauses
In some decisions of the Court, and in writings on the subject, there
appears to be an underlying assumption that if there is an alleged violation
of a treaty there will also be a dispute falling within the terms of the com-
promissory clause. In the vast majority of cases, this will be so; but what if
the party accused of the violation does not dispute it, but returns Falstaff's
answer?"?
That this is no mere hypothese d'ecole is demonstrated by the case con-
cerning Applicability of the Obligation to Arbitrate under Section 21 of the
United Nations Headquarters Agreement of 26 June 1947. The Court was
2.06 ICJ Reports, 1956, p. 30.
2.
0
7 Ibid., p. 41.
2.08 Rosenne's discussion of it, and his analysis of its place in the current development of the philos-
ophy of treaty-law, is nevertheless essential reading.
2.
0
9 Shallow: Knight, you have beaten my men, killed my deer, and broke open my lodge; ... this
shall be answered.
Falstaff: I will answer it straight: I have done all this. That is now answered. (Shakespeare, The
Merry Wives o/Windsor, Act I, Scene 2, lines 104-6.)

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there faced with a situation in which the United States Congress had passed
legislation providing for the closure of the New York Office of the Palestine
Liberation Organization, but that legislation had not yet been carried into
effect. While the attitude of the United States representatives, in contacts
with the United Nations Secretary-General, was non-committal, it
appeared that the United States State Department, at least, fully agreed
with the Secretary-General's contention that the closure of the PLO Office
would be a breach of the Headquarters Agreement. Was there then a'dis-
pute' with the host country 'concerning the interpretation or application' of
the Headquarters Agreement, which under the terms of that Agreement
had to be referred to arbitration?
The point which is here of interest was most lucidly expressed by Judge
Shahabuddeen in his separate opinion:
I have, however, considered an argument that, even so, there is still no conflict
of views between the United States and the United Nations as to the interpretation
of the Agreement for the reason that the United States has taken a position which
may be interpreted to mean that, although the Administration is obliged by dom-
estic law to enforce the Act by closing the PLO Observer Mission, it at the same
time recognizes that it has no right to do so under international law and will engage
international responsibility accordingly if it proceeds to such a closure.v'"
As Judge Shahabuddeen pointed out, this argument would mean that,
provided a State is prepared to go on record as admitting that it is consciously
embarking on the violation of its accepted treaty obligation ... it can escape its
obligation to submit to an agreed procedure for the settlement of disputes concern-
ing the interpretation of the treaty on the ground that it is in fact in agreement with
the other party as to the meaning of the treaty, with the consequence that there is
no dispute as to its interpretation. 211
Judge Shahabuddeen rejects this proposition, which for him is 'pro-
ductive of such strange results'. But, with all respect, the result is only
strange if one regards a compromissory clause as a means of enforcing the
treaty, and of preventing, curing or penalizing breaches of it. In terms,
however, a clause like Section 2 I of the United Nations Headquarters
Agreement is designed to secure an arbitral ruling on a dispute; and if there
is no dispute, there is no need for a ruling. In the situation envisaged by
Judge Shahabuddeen there would, it is true, in all probability still be a dis-
pute as to what should be done to remedy the breach. The legal effects of,
and remedies for, a breach of treaty are however defined by general (cus-
tomary) international law, and a dispute in this respect would therefore not
relate to the interpretation or application of the treaty. In practical terms, a
situation in which the United States closed the PLO Office, while explain-
ing with regret that it was perfectly aware that in doing so it was violating
2)0 ICY Reports, 1988, p. 59.
2JJ Ibid.

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the Headquarters Agreement, would not be an edifying spectacle, but
rather one reminiscent of the Walrus and the Carpenter in Carroll's
poem.V" But would a finding by an arbitral tribunal that the United States
was correct in believing that it was engaged in a breach of treaty really add
anything useful to the imbroglio?
There is here a parallel with a particular aspect of the leADAppeal case.
Appeal had there been brought by India from the decisions of the ICAO
Council, on two separate proceedings brought by Pakistan: first, an 'Appli-
cation' under Article 84 of the 1944 Chicago Convention and Article I I,
section 2, of the 1944 International Air Services Transit Agreement ;21
3
and
secondly, a 'Complaint' under Article II, section 1, of the Transit Agree-
rnent.Y" Article II, section 2, related to
any disagreement between two or more contracting States relating to the interpret-
ation or application of this Agreement.
Section 1 of the same Article conferred competence on the ICAO Council
to deal with complaints by a contracting State
that action by another contracting State is causing injustice or hardship to it.
Pakistan's argument, expressed in the simplest possible terms, was that a
complaint of 'injustice or hardship' was not equivalent to 'a disagreement
... relating to the interpretation or application' of the Agreement; and it
must be accepted that the one does not necessarily imply the other. The
Court found that the primary purpose of a complaint under Section 1 was
to permit redress against legally permissible action [sc., action not in breach of the
Agreement] that nevertheless causes injustice or hardship.v'f
212 I weep for you, the Walrus said;!I deeply sympathize/With sobs and tears he sorted out/Those of
the largest size/Holding his pocket handkerchief/Before his streaming eyes. (Through the Looking-Glass,
Chapter 4.)
21
3 'If any disagreement between two or more contracting States relating to the interpretation or
application of this Agreement cannot be settled by negotiation, the provisions of Chapter XVIII of the
above-mentioned Convention-(nota; this Chapter contains Article 84 above quoted]-shall be appli-
cable in the same manner as provided therein with reference to any disagreement relating to the inter-
pretation or application of the above-mentioned Convention.' Article 84 of the Chicago Convention is in
similar terms.
21
4 'A contracting State which deems that action by another contracting State under this Agreement
is causing injustice or hardship to it, may request the Council to examine the situation. The Council
shall thereupon inquire into the matter, and shall call the States concerned into consultation. Should
such consultation fail to resolve the difficulty, the Council may make appropriate findings and recom-
mendations to the contracting States concerned. If thereafter a contracting State concerned shall in the
opinion of the Council unreasonably fail to take suitable corrective action, the Council may recommend
to the Assembly of the above-mentioned Organization that such contracting State be suspended from its
rights and privileges under this Agreement until such action has been taken. The Assembly by a two-
thirds vote may suspend such contracting State for such period of time as it may deem proper or until
the Council shall find that corrective action has been taken by such State.'
21
5 Ie] Reports, 1972, p. 58, para. 19. One may wonder what action could simultaneously be 'legally
permissible' and yet 'cause injustice', not merely 'harm' or 'injury'; summum jus, summa injuria]

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However, in the view of the Court, if a complaint
relates not to lawful action causing hardship or injustice, but to illegal action
involving breaches of the Treaties,216 it becomes assimilable to the case of an
'application' for the purposes of its appealability to the Court.
21
7
The Court thus introduced a third term into the equation: alongside 'injus-
tice or hardship (A) and 'dispute relating to interpretation or application'
(B) of the treaties, it placed 'unlawful action (C), and then identified this
with the second term (C=B).
It is not suggested here that the Court's reasoning was wrong;218 atten-
tion is merely drawn to the unconscious, almost automatic, identification of
the circumstances of application of a compromissory clause referring to
'interpretation or application' of the Treaty with allegations of breaches of
it, the same line of thought as prevailed in the United Nations Head-
quarters Agreement case.
CHAPTER V:
TERMINATION OF TREATIES
I. Tennination of Treaties containing no Provision for Denunciation."?
One of the problems of treaty-law with which the International Law
Commission had to grapple was whether treaties which contain no pro-
vision for denunciation or termination
are to be regarded as terminable only by unanimous agreement or whether individ-
ual parties are under any conditions to be considered as having an implied right to
withdraw from the treaty upon giving reasonable notice to that effect. 220
The proposal of the Commission was that there should in such a case be no
right of denunciation or withdrawal
unless it is established that the parties intended to admit the possibility of denun-
ciation or withdrawal ;221
the Commission recognized that 'the very character of some treaties'
216 Treaties in the plural, i.e., the Chicago Convention and the Transit Agreement.
21
7 Ie'] Reports, 1972, p. 59, para. 21.
218 The decision of the Court on this part of the case may however be faulted on a matter of pro-
cedurallaw: while Pakistan's complaint disclosed a dispute as to the interpretation or application of the
treaties, it had not been brought before the Council as such; this is a point to be examined further in a
later article, under the heading of 'Questions of Jurisdiction, Competence and Procedure'.
21
9 On this question generally see Widdows, 'The Unilateral Denunciation of Treaties containing no
Denunciation Clause', this Year Book, 53 (1982), pp. 83 ff.
220 ILC Commentary on the draft Articles submitted to the Conference, A/CONF.39/II/Add.2, p.
70. This question is of course independent of the possibility of termination for breach, also regarded as
existing notwithstanding the silence of the treaty; see section 2, below.
221 Draft Article 53, A/CONF.39/II/Add.2, p. 70.

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64 THE LAW AND PROCEDURE OF
excluded such a possibility, the examples given in the ILC Commentary
being treaties of peace and treaties fixing a territorial boundary. 222 In this
respect, the Commission no doubt had in mind the Temple case, where the
Court stated that
In general, when two countries establish a frontier between them, one of the
primary objects is to achieve stability and finality. 223
In the Vienna Convention as adopted, however, the emphasis is reversed,
and the text provides also for the possibility that
a right of denunciation or withdrawal may be implied by the nature of the treaty. 22+
In the Fisheries Jurisdiction cases, Iceland endeavoured to argue that the
1961 Exchange of Notes upon which jurisdiction was based 'was not of a
permanent nature', and could be terminated, and had been terminated, by
Iceland by appropriate notice. The Court did not accept this contention:
It appears to the Court that, although the compromissory clause in the 1961
Exchange of Notes contains no express provisions regarding duration, the obli-
gation it embraces involves an inherent time-factor conditioning its potential appli-
cation. It cannot, therefore, be described accurately as being of a permanent nature
or as one binding the parties in perpetuity. This becomes evident from a consider-
ation of the object of the clause when read in the context of the Exchange of
Notes.
2 2 5
The Court outlined the circumstances in which the Exchange of Notes
might, according to its terms, come to be implemented, and concluded:
The right to invoke the Court's jurisdiction was thus deferred until the occur-
rence of well-defined future events and was therefore subject to a suspensive con-
dition. In other words, it was subject to a condition which could, at any time,
materialize if Iceland made a claim to extend her fishery limits, and the right of
recourse to the Court could be invoked only in that event. 226
It was because of the suspensive condition under Iceland's control that
the Icelandic claim to denunciation on notice could not be accepted. A case
might well be made for a right of denunciation of a jurisdictional treaty
expressed in general terms, since if coupled with a requirement of adequate
notice this would not prevent the other party from invoking the jurisdiction
to deal with any already existing dispute. It could not however have been
222 A fuller list is given in Sir Humphrey Waldock's Second Report on the Law of Treaties, A/eN+'
156, and discussed by Widdows, lococit. above (n. 219), pp. 96-106.
223 ICY Reports, 1962, p. 34.
224 This was. as a result of a proposal made by the United Kingdom, inspired, it appears, by views
expressed by Brierly and Fitzmaurice in Reports on the Law of Treaties: see Sinclair, The Vienna Con-
vention on the Law of Treaties (and. edn., 1984), pp. 186-7. Widdows (loc. cit. above (n. 219), p. 93)
points out that the ascertainment of the intention of the parties may be difficult, 'since what is involved
is not interpretation of a treaty provision but ascertainment of the intention of parties in the absence of a
treaty provision'.
225 Ie] Reports, 1973, p. IS, para. 26.
226 Ibid., p. IS, para. 28.

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intended that Iceland, having made up its mind to claim extended fishery
jurisdiction, could defer taking any steps to do so until it had thrown off the
jurisdictional commitment by denunciation on notice.?"?
The Court then took the opportunity to deal, obiter, with the more
general point:
The above observations suffice to dispose of a possible objection based on views
expressed by certain authorities to the effect that treaties of judicial settlement or
declarations of acceptance of the compulsory jurisdiction of the Court are among
those treaty provisions which, by their very nature, may be subject to unilateral
denunciation in the absence of express provisions regarding their duration or ter-
mination. Since those views cannot apply to a case such as the present one, the
Court does not need to examine or pronounce upon the point of principle involved.
I t is sufficient to remark that such views have reference only to instruments in
which the parties had assumed a general obligation to submit to judicial settlement
all or certain of disputes which might arise between them in the unpre-
dictable future.Y
This may be read as merely confirming what had already been said as to the
specific provision in the Exchange of Notes; but the reference to 'the unpre-
dictable future' is intriguing. Did the Court have in mind the possibility of
a denunciation based on 'fundamental change of circumstances', a point
also raised in the Fisheries Junsdiction cases? For that, of course, raises dif-
ferent considerations from a denunciation justified not by any specific
reason, but by a presumed residual rule, softened by a requirement of
notice.
The question arose again in connection with the request for an advisory
opinion on the Interpretation of the Agreement of 25 March 1951 between
the WHO and Egypt. Section 37 of that Agreement read as follows:
The present Agreement may be revised at the request of either party. In this
event the two parties shall consult each other concerning the modifications to be
made to its provisions. If the negotiations do not result in an understanding within
one year, the present Agreement may be denounced by either party giving two
years' notice. 229
As the Court explained, the dispute which led to the request for the advi-
sory opinion turned on the meaning of the word 'revise': did it cover only
modifications of particular provisions of the Agreement, or did it also
227 It is interesting to speculate whether, after the proceedings in the Fisheries Jurisdiction cases
were over, Iceland could have claimed a right of unilateral denunciation on notice. The suspensive con-
dition had come into operation; but did it continue to exist, so as to be invoked in case of any further
claim to fishery extension?
228 ICJ Reports, 1973, pp. 15-16, para. 29; p. 60, para. 29. It is noteworthy that the Court did not,
as it did with the claim of duress (above, Chapter II, section 4(2, state the existence of a rule but find
that it did not apply. As Briggs has observed, the Court's handling of the point 'suggests that any claim
by a State of a unilateral right of denunciation implied from the nature of a treaty will be received with
reserve'; 'Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of
Justice', American Journal of International Law, 68 (1976), p. 64; in the same sense, Triggiani, 'La
Denuncia dei trattati fondata sulla loro natura', Communicazioni e studi, 15 (1978), pp. 508-<).
229 Quoted in ICj Reports, 1980, p. 88, para. 34.

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66
extend to a general or total revision of the Agreement, including its termi-
nation? The proponents of each view sought support in Article 56 of the
Vienna Convention on the Law of Treaties.
Those who contended that 'revise' meant only modification of particular
provisions concluded that the Agreement contained no general rights of
denunciation. They therefore invoked
the general rules expressed in the first paragraph of Article 56 of the Vienna Con-
vention on the Law of Treaties and the corresponding provision of the Inter-
national Law Commission's draft articles on treaties concluded between States and
international organizations or between international organizations. Under those
articles a treaty, 'which contains no provision regarding its termination and which
does not provide for denunciation or withdrawal' is not subject to denunciation or
withdrawal unless, inter alia, such a right may be implied by the nature of the
treaty. Referring to opinions expressed in the International Law Commission that
headquarters agreements of international organizations are by their nature agree-
ments in which a right of denunciation may be implied under the articles in ques-
tion, they then maintain that such a general right of denunciation is to be implied
in the 195 1 Agreement. 23
Those who held the opposite view, that Article 37 did apply to a general
revision or termination, also replied to the argument based on Article 56 of
the Vienna Convention by observing that paragraph 2 of that Article
specifically provides that in any case where a right of denunciation or withdrawal is
implied in a treaty a party shall give not less than twelve months' notice of its inten-
tion to exercise the right.
23 1
The Court did not however give a direct answer to the question whether
or not an implied right of denunciation was to be read into the 1951 Agree-
ment as a 'headquarters agreement'; it virtually re-wrote the question put to
it for advisory opinion, in the following terms.
What are the legal principles and rules applicable to the question under what
conditions and in accordance with what modalities a transfer of the Regional Office
from Egypt may be effected?23
2
It in effect put aside Section 37 of the 1951 Agreement, holding that
Whatever view may be held on the question whether the establishment and
location of the Regional Office in Alexandria are embraced within the provisions of
the 1951 Agreement, and whatever view may be held on the question whether the
provisions of Section 37 are applicable to the case of a transfer of the Office from
Egypt, the fact remains that certain legal principles and rules are applicable in the
case of such a transfer. 233
This finding immediately raises a problem: are the legal principles and
Z30 Ibid., p. 91, para. 40.
Z3 ' Ibid., p. 92, para. 41.
Z3
Z
Ibid., p. 88, para. 35.
Z33 Ibid., p. 92, para. 42.

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rules here contemplated matters of treaty-law or not? In other words, if the
1951 Agreement had never 'existed, would the legal principles and rules
referred to operate, as a result simply of the relationship between the WHO
and Egypt, as the host country of the Regional Office; or are they principles
and rules applicable to the modification of a treaty-relationship?
In a previous article in this series
234
it was observed that the Court was
applying a 'general international law' of uncertain provenance. To the
extent however that the law applied is to be taken to be treaty-law, the
Court appears to have hedged its bets somewhat on the question of where
the relevant treaty was to be found. The next paragraph of the judgment
declares that
By the mutual understanding reached between Egypt and the Organization from
1949 to 195 I with respect to the Regional Office of the Organization in Egypt,
whether they are regarded as distinct agreements or as separate parts of one trans-
action, a contractual legal regime was created between Egypt and the Organization
uihich remains the basis of their legal relations today. 235
However, the Court then mentions, as a fact apparently to be regarded as
relevant, that Egypt was a founder Member of the Organization. A third
consideration is that
Egypt offered to become host to the Regional Office in Alexandria and the Organiz-
ation accepted that offer;
thus the legal relationship between the two became, and now is, that of a
host State and an international organization. 23
6
What is certain is that the Court did not identify any express and specific
agreement providing for termination of the relationship of host State and
organization, or for the modalities of such termination. Any rules govern-
ing that question had therefore to be implied. The Court looked for them
first in State practice, though it did not use that definition: it examined the
provisions of other host agreements, and considered that
they confirm the recognition by international organizations and host States of the
existence of mutual obligations incumbent upon them to resolve the problems
attendant upon a revision, termination or denunciation of a host agreement,
and
must be presumed to reflect the views of organizations and host States as to the
implications of those obiigations.f'?
The Court however found 'a further general indication as to what those
obligations may entail' in paragraph 2 of Article 56 of the Vienna Conven-
tion.
234 This Year Book, 61 (1990), pp. 37-40.
235 ICJ Reports, 1980, pp. 92-3, para. 43 (emphasis added).
23
6
Ibid., p. 93, para. 43 (emphasis added).
237 Ibid., p. 94, para. 46.

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68
The argument of the judgment may thus be summed up as follows: there
is a contractual (treaty-law) relationship between Egypt and the WHO,
specifically one of host State and international organization; there is no text
providing specifically for termination; however that relationship came into
existence, there are applicable rules for the modalities of such termination.
There is however a link in the Court's chain of argument which does not
seem to have been expressly stated, but only implied: the existence of an
applicable rule which provides that termination of such a relationship
(other than for breach or on account of changed circumstances) is possible
at all.
It seems however that the Court must be taken to have confirmed that, as
a matter of customary law, a treaty which is in the nature of a host agree-
ment of an international organization must be taken to contain an implied
provision for its denunciation; and that to that extent the provisions of
Article 56, paragraph I, of the Vienna Convention on the Law of Treaties
may be read as corresponding to customary law on the basis that a host
agreement is one of the treaties whose nature implies a right of denunci-
ation or withdrawal.
Just where this leaves Article 37 is also not entirely clear. It is generally
recognized that if a treaty itself provides for its denunciation, that provision
governs the matter exhaustively, and there is no room for application of any
residual rule.
238
It is clear, furthermore, that Section 37 of the 1951 Agree-
ment must have formed part of the overall contractual relationship. Does
this mean that the Court was by implication stating what it had refused to
say openly: that the provision in Article 37 for the Agreement to be 'revised'
did not extend to its wholesale termination?
A parallel problem, that of the withdrawal of Optional Clause declar-
ations containing no time restriction or provision for termination, arose in
the Nicaragua v. United States case. The declaration made in 1946 by the
United States was expressed to remain in force 'for a period of five years
and thereafter until the expiration of six months after notice may be given
to terminate the declaration'. On 6 April 1984 the United States deposited
with the Secretary-General a notification purporting to modify the 1946
declaration by excluding 'disputes with any Central American State or aris-
ing out of or related to events in Central America'; the notification declared
that' Notwithstanding the terms of the [1946] declaration, this proviso shall
take effect immediately . . . '.
The Court expressly assimilated Optional Clause declarations to a
network of bilateral treaties:
In fact, the declarations, even though they are unilateral acts, establish a series of
bilateral engagements with other States accepting the same obligation of compul-
sory jurisdiction, in which the conditions, reservations and time-limit clauses are
23
8
In this sense Widdows, lac. cit. above (n. 219). pp. 83-4.

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taken into consideration. In the establishment of this network of engagements,
which constitutes the Optional-Clause system, the principle of good faith plays an
important role . . . 239
The main stumbling-block for the United States was however the six
months' notice clause, and it was on this that the Court primarily based its
conclusion, so that it did not need to rule on the wider question of denun-
ciation of declarations containing no provision for termination.
The most important question relating to the effect of the 1984 notifications is
whether the United States was free to disregard the clause of six months' notice
which, freely and by its own choice, it had appended to its 1946 Declaration. In so
doing the United States entered into an obligation which is binding upon it vis-a-
vis other States parties to the Optional-Clause system. Although the United States
retained the right to modify the contents of the 1946 Declaration or to terminate it,
a power which is inherent in any unilateral act of a State, it has, nevertheless
assumed an inescapable obligation towards other States accepting the Optional
Clause, by stating formally and solemnly that any such change should take effect
only after six months have elapsed as from the date of notice. 24
In sum, the six months' notice clause forms an important integral part of the
United States Declaration and it is a condition that must be complied with in case
of either termination or modification. 24
1
The United States had however also argued that the Nicaraguan
Optional Clause declaration, which contained no limitation as to time, was
therefore inherently terminable without notice; and that the United States
was therefore entitled, in application of the reciprocity principle, to termin-
ate its own declaration without notice. The Court did not accept this novel
version of the reciprocity rule. Judge Sir Robert Jennings, in his separate
opinion, was tempted by it, but ultimately took a different view of the basic
question:
The conclusion I have come to, however, is that, attractive as the device of reci-
procity might be for solving this problem, the fact is that the practice of States-
certainly the recent practice of States-has already gone beyond it. I believe there
is ample evidence that States belonging to the Optional-Clause system have now
generally the expectation that they can lawfully withdraw or alter their declarations
of acceptance at will, provided only that this is done before seisin. Certainly there
is no lack of precedents where this has been done without effective protest, and, in
recent cases, without any protest whatsoever. It is necessary, however, briefly to
mention certain aspects of this modern practice.v'"
239 ICJ Reports, 1984, p. 418, para. 60; see also the dissenting opinion of Judge Schwebel, ibid., pp.
620-1, para. 99; and d. the previous article in this series, this Year Book, 62 (199 1), p. 9.
24 ICJ Reports, 1984, p. 419, para. 6r.
24
1
Ibid., p. ,pI, para. 6s.
24
2
The United States argument based on the concept of reciprocity will be examined in a later article
on 'Questions of Jurisdiction, Competence and Procedure'.

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7
From this examination of practice, Judge Jennings concluded that it was at
least 'arguable' that it supports the proposition that the right of immediate
denunciation or modification 'is now, whatever may have been the position
at an earlier period, one generally available'. 243
Judge Jennings also regarded as a relevant consideration
the labours of the International Law Commission in its work on the law of treaties,
and its view reached, after careful investigation, that treaties of arbitration, concili-
ation or judicial settlement are amongst those which, even in the absence of a
denunciation clause, are by reason of the nature of the treaty, terminable by
notice, 244
and was impressed by the fact that
Sir Humphrey Waldock, the distinguished Special Rapporteur on the law of
treaties, in examining the position of such treaties, arguedfrom the analogy of the
Optional-Clause system.Y"
Judge Schwebel also relied on the Report of Sir Humphrey Waldock.v'"
Judge Jennings does not discuss the problem of specific provision in the
United States declaration for six months' notice, so that one may conclude
that he regards that provision as over-ridden by the basic right of denunci-
ation conferred by custom.
Judge Oda on the other hand accepted the validity of the United States
modification solely on the basis of reciprocity, in the absence of which he
would apparently have regarded the six months' notice provision as bind-
ing.
247
Judge Mosler in his opinion stated what he considered to be the relevant
principle:
Nicaragua's Declaration is unconditional, that is, not only without reservation
but also without time-limit. To this declaration the general principle applies that
all legally binding acts, whether made unilaterally, or within the framework of a
contractual relationship, or in the complex system which the Judgment describes
as 'sui generis', can, under certain conditions, be terminated. Article 56 of the
Vienna Convention is based on this principle. The question remains however on
what conditions the right of termination may be exercised. It may be open to doubt
whether the Nicaraguan Declaration can be terminated with legal effect immedi-
ately on notice, or only after a lapse of a certain time after such notice. Article 56 of
the Vienna Convention refers to the 'nature of the treaty', or envisages a 12 months'
notice. Applying the same ideas by analogy to the 'consensual bond' effected by
declarations under the Optional Clause, the 'nature' of the bond is characterized by
the equal significance of the obligations ... It does not follow from the 'nature' of
243 ICJ Reports, 1984, p. 550.
244 Ibid., p. 551. .
245 Ibid., p. 552, quoting ILC Yearbook, 1963, vol. 2, p. 68.
24
6
ICJ Reports, 1984. p. 621.
247 Ibid., pp. 51 0-13.

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an 'unconditional' declaration that it may be terminated at any time and with
immediate effect. Article S6 of the Vienna Convention shows-and here again an
analogy is suggested-that the termination of an obligation must be governed by
the principle of good faith. Withdrawal without any period of notice seems to me
not to correspond with this principle if a declaration has been made explicitly
unconditional. 24
8
He concluded that, even if the reciprocity rule applied, the United States
could not terminate its obligation by merely a few days' notice.
2. Termination (or Suspension) of Treaty on account ofMaterial Breach
The Court has, during the period under review, had before it a number
of claims that breaches of treaty have been committed; such claims were
made in Guardianship of Infants (1958), South West Africa (1962/1966),
Northern Cameroons (1963), IeAO Appeal (1972), Hostages (1980),
Nicaragua v. United States (1984"1986) and ELSI (1989); questions of
compliance with a treaty also arose in Namibia (1971), Fisheries Jurisdic-
tion (1973/1974), Egypt-WHOAgreement (1980) and the UNHeadquarters
Agreement (1988). In no case, however, was the Court asked to declare the
relevant treaty terminated, though in Namibia the Court found it appropri-
ate to consider the question whether the Mandate for South West Africa
had been duly terminated.
That a right of termination for breach does, in appropriate circum-
stances, exist is undoubted. Article 60 of the Vienna Convention on the
Law of Treaties, providing that
A material breach of a bilateral treaty by one of the parties entitles the other to
invoke the breach as a ground for terminating the treaty or suspending its operation
in whole or in part,
was treated by the Court in the Namibia case as corresponding to general
international law. It stated that the rules laid down by the Convention on
this matter 'may in many respects be considered as a codification of existing
customary law on the subject' ;2
49
and it gave no indication that in any
respect material to the case it could not be so considered. The breaches in
question were the breaches by South Africa of the Mandate for South West
Africa which had been found by the General Assembly to exist and treated
by it as grounds for revoking the Mandate; as the Court recalled, the Man-
date had already been judicially found to be 'an international agreement
having the character of a treaty or convention' ;2
50
and 'even if the mandate
24
8
Ibid., pp. 466-7.
249 ICY Reports, 1971, p. 47, para. 95.
25 South West./'VTica, ICJ Reports, 1962, p. 330, quoted in Namibia, ICJ Reports, 1971, p. 47, para.
94

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is viewed as having the character of an institution, ... it depends on those
international agreements which created the system and regulated its appli-
cation'.25
1
The Court accepted also the Convention's definition of a 'material
breach', which includes the concept of 'repudiation', of a treaty, 25
2
but did
not itself examine the question whether South Africa's conduct amounted
to such a breach, merely referring to the General Assembly's finding that
South Africa 'has, in fact, disowned the Mandate'. 253 This is of importance
because, as Judge Sir Gerald Fitzmaurice observed in his dissenting
opinion, 'To deny the existence of an obligation'-which South Africa had
done, in respect of the obligation to accept the supervision of the General
Assembly-'is ex hypothesi not the same as to repudiate it'. 254 Sir Gerald's
point is presumably that South Africa never denied that there was an obli-
gation of this kind under the Mandate, but it did deny that the Mandate
was still in force and that the United Nations had acquired the right of
supervision. With all respect to Sir Gerald, the line between the two con-
cepts becomes, in these circumstances, a very fine one :255 but the Court
might nevertheless have had difficulties in applying the Convention
category of 'repudiation' to the situation.
It is however evident that the Court did not, by refraining from going
into the question, mean to imply that the question whether a breach of a
treaty is a material one within the meaning of the Convention is one for the
unfettered appreciation of the complainant party. The question put to it
was merely that of the effect of South Africa's disregard of the Security
Council resolution adopted following the General Assembly's termination
of the Mandate; and it was with some hesitation, and only because the
matter had been raised in argument before it, that the Court considered
even the power of the General Assembly to effect the termination.
South Africa also objected that the Council of the League had had no
power to terminate a mandate for misconduct of the mandatory, and that
the General Assembly could not have more powers in this respect than the
League Council had had. The solution to this difficulty found by the Court
was the following:
For this objection to prevail it would be necessary to show that the mandates sys-
tem, as established under the League, excluded the application of the general prin-
ciple of law that a right of termination on account of breach must be presumed to
exist in respect of all treaties, except as regards provisions relating to the protection
of the human person contained in treaties of a humanitarian character (as indicated
2.5' ICJ Reports, 1971, p. 46, para. 94.
2.52. '(a) A repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a
provision essential to the accomplishment of the object or purpose of the treaty.'
2.53 General Assembly Resolution 2145 (XXI), quoted in ICJ Reports, 1971, p. 47, para. 95.
2.54 ICJ Reports, 1971, p. 300, para. 6.
2.55 For a different view as to the meaning of 'repudiation' see Plender, 'The Role of Consent in the
Termination of Treaties', this Year Book, 62 (1986), p. 160, n. 165.

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73
in Art. 60, para. S, of the Vienna Convention). The silence of a treaty as to the
existence of such a right cannot be interpreted as implying the exclusion of a right
which has its source outside of the treaty, in general international law, and is
dependent on the occurrence of circumstances which are not normally envisaged
when a treaty is concluded.Y"
This passage in the advisory opinion was strongly criticized by Briggs, 257
who emphasized the difference between 'a right of termination on account
of breach', as found by the Court, and a right to invoke a breach as a ground
for termination or suspension, as contemplated by the Vienna Convention;
this distinction will be considered further below. 25
8
There may also be some doubt, and Judge Sir Gerald Fitzmaurice put
the point in stronger terms than this,2
59
whether it is appropriate to apply
to the institution of the Mandate principles and rules of a contractual
nature, and forming part of treaty-law; even if the Mandate was a treaty, it
was more than a treaty, and in its treaty aspect it was of a rather special
character. However, the finding of the Court as to the universality of the
rule that a material breach may lead to termination of the treaty is hardly
open to challenge. 260
A more delicate point is whether the general rule can override the inten-
tions of the parties. There was some material to support the view that the
'C'-class mandates had been intended, not merely by the Powers on whom
they were conferred, but by the Principal Allied and Associated Powers and
other States concerned, to be irrevocable."?' The Court did not accept, on
the facts, that this was so; which suggests that it would not have been pre-
pared to hold that the rule expressed in Article 60 of the Vienna Convention
was in effect one of jus cogens, so that even a treaty which both parties
>'5
6
ICY Reports, 1971, p. 47, para. 96. The expression 'a right which has its source outside the treaty'
was to have unexpected repercussions the following year, in the ICAOAppeal case: see below, p. 74.
>'57 'The elaborate care with which the International Law Commission and the Vienna Conference in
their restatement of the law of treaties restricted any claim of unilateral right by a State to terminate a
treaty for breach to a right to invoke the breach as a ground for termination or suspension should have
given pause to the Court, particularly before it indulged in obiter dicta and made undiscriminating
generalizations not essential to the case before it. It should be carefully noted that no question of a claim
by a State of a unilateral right to terminate a treaty for breach Was before the Court in this case. In
Namibia the Court was dealing incidentally with the revocation by a collective supervisory organ of a
multilateral treaty having institutional characteristics because of non-performance. The only analogy
with Article 60 of the Vienna Convention is with the collective right of termination set forth in para-
graph 2(a)': Briggs, 'Unilateral Denunciation of Treaties: The Vienna Convention and the Inter-
national Court of Justice', Amencan fournal ofInternational Law, 68 (1974), pp. 56-7. See also Pisillo
Mazzeschi, Risoluzione e Sospensione dei Trattati per Inadempimento (1984), pp. 235 ff.
>'5
8
Below, Chapter V, section 5( I )
>'59 Dissenting opinion, ICJ Reports, 1971, pp. 266-7, para. 68.
260 'That a right of unilateral denunciation of a treaty on the grounds of prior material breach by
another party exists is attested to by jurists and confirmed by State practice': Sinclair, The Vienna
Convention on the Law of Treaties (znd edn., 1984), p. 188. The International Law Commission attri-
buted the view, not to all, but to 'the great majority of jurists': Commentary on draft Articles, AI
CONF39/II/Add.2, p. 73.
>.61 SeeICJReports, 1971, pp. 47-8, paras. 97-9.

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74
intended to be exempt from denunciation for breachr'" could be terminated
on that ground.
In the leAOAppeal case in 1972, India had maintained before the ICAD
Council that the Chicago Convention and Transit Agreement were not in
force, or suspended, either because
they were or became terminated or suspended as between the Parties upon the out-
break of hostilities in 1965 and have never been revived,
or because
India in any case became entitled under general international law to terminate or
suspend the Treaties as from January 1971, by reason of a material breach of them,
for which Pakistan was responsible, arising out of the hijacking incident that then
occurred.v'?
Taking up the phrase used by the Court in the Namibia opinion, India
claimed that the right of termination was 'a right which has its source out-
side the treaty', so that the dispute did not fall within the jurisdiction of the
Council over 'disputes relating to the interpretation or application' of the
treaties.
While emphasizing that these contentions clearly belonged to the merits
of the dispute 'into which the Court cannot go',
26
4 the Court made one
observation of general interest on claims to termination for breach of treaty:
India does not appear at the time of the hijacking incident to have indicated which
provisions of the Treaties ... were alleged to have been breached by Pakistan.
She was not of course in any way obliged to do so at that stage . . .
26
5
Exactly what is meant by 'at that stage' is uncertain; it would seem that
even if a State is not bound instantly to characterize an action complained
of as a breach of a specific provision of a treaty, it must do so when asserting
its right to terminate the treaty on grounds of breach.
The Court did not determine the question whether the right of termi-
nation of a treaty is 'within' or 'without' the treaty:
The Court considers however, that for precisely the same order of reason as has
already been noticed in the case of its own jurisdiction in the present case,266 a
mere unilateral affirmation of these contentions-contested by the other party-
cannot be utilized so as to negative the Council's jurisdiction. The point is not that
:>6:> This may seem an unlikely situation: but-the special category of mandates apart-it is not
inconceivable that the parties to a treaty which, according to its own terms, was subject to regular
review or re-adoption, might wish it to remain in force during the inter-review periods, any breach
simply resulting in one party declining to re-adopt when that period ran out.
:>63 ICJ Reports, 1972, p. 62, para. 29(I)(b).
:>64 Ibid., p. 62, para. 30.
:>65 Ibid., p. 63, para. 30(b). A similar approach was taken in the Nicaragua v. United States case to
the question whether Nicaragua could invoke a compromissory clause in a treaty in respect of a dispute
in which it had not expressly asserted that that treaty had been breached: ICJ Reports, 1984, pp. 428-<),
para. 83.
:>66 The reference is to the passage of the judgment quoted in Chapter III, section 1(3), above, p. 38.

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75
these are necessarily wrong but that their validity has not yet been determined.
Since therefore the Parties are in disagreement as to whether the Treaties ever were
(validly) suspended or replaced by something else; as to whether they are in force
between the Parties or not; and as to whether India's action in relation to Pakistan
overflights was such as not to involve the Treaties, but to be justifiable aliter et
aliunde ;-these very questions are in issue before the Council, and no conclusions
as to jurisdiction can be drawn from them, at least at this stage, so as to exclude ipso
facto and a priori the competence of the Council.
26
7
3. Termination of Treaties on the Ground ofFundamental
Change of Circumstances
It has been suggestedt'" that judicial procedure is, in general unsuitable
for the settlement of disputes in connection with what was formerly
referred to as the 'c/ausula rebus sic stantibus', and is now discussed under
the rubric of 'fundamental change of circumstances', since 'the issue is a
political rather than a legal one'. Be that as it may, the Court has had on
occasion to consider the problem.
(I) The Right of Passage case
The 1960 judgment of the Court in the case concerning Right of Passage
over Indian Territory referred to a claim by India that the treaty rights
claimed by Portugal had come to an end as a result of a fundamental change
of circumstances, on the basis of the rebus sic stantibus rule, but the
decision of the Court was such that it found no need to deal with this point.
Two of the dissenting judges did however find it necessary to deal with the
matter, and upheld India's argument, though on the basis of slightly differ-
ent reasoning.
The rights claimed by Portugal were rights of passage between the
Portuguese enclaves within Indian territory, and the basis for them was a
treaty made in 1779 with the Maratha rulers of India; the Court found that
Portugal had such rights in 1954 when Portuguese authority in the enclaves
was overthrown, and an 'independent local administration' was established.
The Court considered that this was the date by reference to which it had to
ascertain the existence of the rights claimed, not the date of the judg-
ment.
26
9
The fundamental change of. circumstances relied on by India was how-
ever the overthrow of Portuguese authority and the creation of the indepen-
dent local administration. Accordingly, the decision of the Court as to the
relevant date would, as the Court stated,
leave open the arguments of India regarding the subsequent lapse of the right of
passage and of the correlative obligations. It is in connection with what may have to
26
268 Haraszti, 'Treaties and Fundamental Change of Circumstances', Recueil des cours , 146
(1975-111), p. 90, n. 7
26
9 Ie] Reports, 1960, p. 29.

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be decided, not as to the past, but as to the present and the future, that these argu-
ments may, if such questions arise, be taken into consideration. 27
In fact the Court made no decision as to the present or future; it did decide
that India's refusal of a Portuguese request for passage after the overthrow
of its authority in July 1954 was not
action contrary to its obligation resulting from Portugal's right of passage."?'
Judge Armand-Ugon agreed with the majority of the Court in holding
that Portugal had a right of passage as claimed, but he went further by
holding that India had failed to comply with its obligations by virtue of that
right during the period immediately preceding and following the events of
July 1954. However, he considered that
the passage claimed must be regarded as incapable of exercise [in] the present situ-
ation.f?"
The right was not granted in the course of the long practice referred to pre-
viously for a situation such as that which has arisen in the enclaves. The existence
of a de facto government there is a contingency not contemplated and one which is
new in the habitual practice of the right of passage.
The changes which have occurred in the enclaves affect the causes which gave
rise to the right of passage and must naturally have their effect on the right of
passage itself or on the ways in which it may be exercised. These new facts must
lead to holding either that the right which has been recognized must be suspended
or that it has become extinguished. 273
Judge Moreno Quintana took a different view on the existence of the
right of passage: he considered that the Portuguese had never, as the Court
held, acquired from the Marathas sovereignty over the villages claimed, but
merely a revenue right, called ajagir; thus
passage continued to exist as a necessary corollary to the collection of jagir and did
not thereby constitute a separate right in Portugal's favour. 274
The change of circumstances which had occurred by 1954 was thus the fol-
lowing:
The friendship promised by the Portuguese to the Marathas in 1779 had given
way to a cold war between India and Portugal. The Indians had closed their Leg-
ation in Lisbon because of Portugal's refusal to negotiate the surrender of its sover-
eignty over parts of India. As a result of circumstances the mutual rights and
obligations under the Treaty of Punem were extinguished. There could be no
better application than this of the rule recalled by Emerich de Vatte1 in his well-
known treatise: Omnis conventio intelligitur rebus sic stantibus. The Treaty of
"-7 Ibid.
"-7
1
Ibid., p. 45.
"-7"- Ibid., p. 87.
"-73 Ibid.
"-74 Ibid., p. 93.

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77
Punem was no more; Portugal no longer claimed the payment of jagir; passage
between Daman, Dadra and Nagar-Aveli had no further raison d' etre.
275
Neither judge mentioned the two exceptions to the rebus sic stantibus
rule which were to be incorporated in the Vienna Convention on the Law of
Treaties, of which at least the first was regarded by the International Law
Commission as already recognized in general international law r'?" the
exclusion of boundary treaties, and the rule that a fundamental change of
circumstances may not be relied on by a party which itself brought that
change about.V? For Judge Moreno Quintana, of course, the Treaty of
Punem did not establish a boundary, but for the majority of the Court, and
for Judge Armand-Ugon, its effect was to confer sovereignty over the
enclaved villages on Portugal, and thus in effect to establish a boundary. 27
8
As to the second exception, it was also alleged by Portugal that the upris-
ings in the villages had not been spontaneous, but had been prepared on
Indian territory, with the co-operation of India, which also prevented
Portugal from dealing with them.r"?
(2) The Fisheries Jurisdiction cases
In its judgment of 1973 on the question of its own jurisdiction in the two
cases concerning Fisheries Junsdiction, brought against Iceland by the
United Kingdom and the Federal Republic of Germany, the Court itself
dealt with the question of possible termination of a treaty on the ground of
fundamental change of circumstances; though it did not uphold the claim
that such circumstances existed, thus preserving the negative record of
international tribunals in this respcct.Y" In its discussion of the question, it
made specific reference to Article 62 of the Vienna Convention on the Law
of Treaties, which, it declared, 'may in many respects be considered as a
codification of existing customary law' on the subject.Y"
The claim of Iceland which gave rise to the discussion of the point in the
judgment was somewhat obscure; it was only adumbrated in Government
275 Ibid.
27
6
Vienna Convention on the Law of Treaties, Article 62, para. 2(a); see the ILC Commentary on
the draft Articles, A/CONF.39/II/Add.2, p. 79, para. (II). In the Aegean Sea Continental Shelf case
the Court referred in passing to 'the rule excluding boundary agreements from fundamental change of
circumstances': ICY Reports, 1978, p. 36, para. 85.
277 Explained by the International Law Commission as 'simply an application of the general principle
of law that a party cannot take advantage of its own wrong (Factory at Chorzozo case, PCIY (1927),
Series A, NO.9, at page 31)': A/CONF.39/II/Add.2, p. 79, para. (12).
27
8
For Haraszti, a distinction must be drawn between treaties (e.g., treaties of cession) which are
executed uno ictu, and which create a new legal situation which must therefore be respected; and
treaties affecting territorial rights which do not expire by a single act of performance, e.g., treaties cre-
ating international servitudes such as a right of passage. In his view, only the first category is exempt
from possible termination for change of circumstances: 'Treaties and Fundamental Change of Circum-
stances', Recueil des cours , 146 (1975-III), pp. 65-8. See also Sico, Gli effetti del mutamento delle cir-
costanze sui trattati internazionali (Padova, 1983), p. 198 text and n. 150.
279 Right ofPassage over Indian Territory, Pleadings, vol. 2, pp. 518-20, paras. 275-7.
280 See for example Sinclair, The Vienna Convention on the Law of Treaties (and. edn., 19
84),
p. 193
28, ICj Reports, 1973, p. 18, para. 36; p. 63, para. 36.

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7
8
statements, not stated in formal pleadings, since Iceland had chosen not to
appear in the proceedings, and the formation of the contention in forms of
traditional law was made by the applicants, for purposes of refutation.Y"
The treaty in question was the 1961 Exchange of Notes by which the
United Kingdom had withdrawn its opposition to the Icelandic claim to a
r z-rnile fisheries zone, and Iceland had agreed to the jurisdiction of the
Court for the determination of the legal validity of any subsequent exten-
sion of its fisheries jurisdiction. The Court did not treat as a claim of funda-
mental change of circumstances the Icelandic reliance on the changes in
general international law on fisheries jurisdiction which had occurred since
1961: as already noted above, the Court discussed this aspect of the matter
under the heading of 'failure of consideration'. The Court however took up
a reference in a letter from the Icelandic Government to the Court to
the changed circumstances resulting from the ever-increasing exploitation of the
fishery resources in the seas surrounding Iceland,
and a statement in a resolution of the Icelandic Parliament that
owing to changed circumstances the Notes concerning fishery limits exchanged in
1961 are no longer applicable.
28
3
The Court stated that:
In these statements the Government of Iceland is basing itself on the principle of
termination of a treaty by reason of change of circumstances. International law
admits that a fundamental change in the circumstances which determined the par-
ties to accept a treaty, if it has resulted in a radical transformation of the extent of
the obligations imposed by it, may, under certain conditions, afford the party
affected a ground for invoking the termination or suspension of the treaty.
28
4
While the International Law Commission, in its commentary on the
Draft Articles presented to the Vienna Conference, mentioned as one of the
'limiting conditions' of implementation of the rule that the 'change must be
a fundamental one',
28
5 and Article 62 of the Convention uses that adjective,
no definition is supplied of what is such a fundamental change. The Court
in its 1973 judgment quoted the letter to the Court from the Icelandic
Government, and the Parliamentary resolution, both of which referred to
the 'vital interests' of Iceland, and concluded:
The invocation by Iceland of its 'vital interests', which were not made the sub-
ject of an express reservation to the acceptance of the jurisdictional obligation
under the 1961 Exchange of Notes, must be interpreted, in the context of the
282 See Pleadings, vol. I, pp. 143--<), 25l)-6o (United Kingdom); vol. 2, pp. 89--<)1, 131-2 (Federal
Republic of Germany). On the problems faced by applicants in cases where the respondent does not
appear, see Fitzmaurice, 'The Problem of the "Non-appearing" Defendant Government', this Year
Book, 51 (1980), pp. 8l)-I22, and the present writer's Non-appearance before the International Court of
Justice (Cambridge, 1985).
28
3 ICJ Reports, 1973, pp. 18-19, paras. 35, 37; pp. 62-3, paras. 35, 37
28
4 ICJ Reports, 1973, p. 18, para. 36; p. 63, para. 36.
28S A/CONF39/II/Add.2, pp. 78--<), para. (9).

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79
assertion of changed circumstances, as an indication by Iceland of the reason why it
regards as fundamental the changes which in its view have taken place in previously
existing fishing techniques. This interpretation would correspond to the traditional
view that the changes of circumstances which must be regarded as fundamental or
vital are those which imperil the existence or vital development of one of the par-
ties.
286
It is certain that the 'traditional view' expressed as the doctrine of the
clausula rebus sic stantibus linked the question of change to protection of
what a State regarded as its 'vital interests'. Lauterpacht, no friend to the
traditional view, defined it as
the doctrine that a State may lawfully rescind a valid treaty if there has taken place
such a change of circumstances that, in its opinion, the fulfilment of the treaty
would dangerously affect its vital interests.
28
7
The question is, however, whether this aspect of the doctrine is still a part
of modern law, as expressed, in particular, in the Vienna Convention, and
in particular whether it can be taken to be entailed in the expression 'funda-
mental change of circumstances'. It may not be a mere linguistic quibble to
observe that the traditional rule would be better conveyed by reference to a
'change of fundamental circumstances'. A change in circumstances may in
itself be slight, yet render fulfilment of the treaty dangerous to the interests
of the affected State; and there may be a dramatic change in circumstances
related to or contemplated by the treaty, such as to earn the qualification
'fundamental', yet be without impact on any vital interest.
The danger of the traditional doctrine was always recognized to be its
subjective nature: only the State affected could judge what were its vital
interests. It was to move away from this subjective character that the Inter-
national Law Commission deliberately avoided using the time-hallowed
expression rebus sic stantibus, more fully clausula rebus sic stantibus, pre-
ferring 'fundamental change of circumstances'. 288 In this it was in tune with
the general development of doctrine, which had moved away from the idea
of the rule as based on an implied term in each treaty, and towards the idea
of a rule of general international law, applicable to all treaties, regardless of
the parties' intentions-save, perhaps, where they made other provision for
the possible events which might justify invocation of the rule. It is to be
feared that the Court's definition of 'fundamental change of circumstances'
in the Fisheries Jurisdiction cases marks a retrograde step, by re-
introducing the idea of vital interests, and by implication the subjectivity of
the rule.
Judge Sir Gerald Fitzmaurice, in a separate opinion, agreed with what
286 Ie] Reports, 1973, p. 19, para. 38; pp. 63-4, para. 38.
28
7 Priuate Law Sources and Analogies of International Law (1927), p. 167; d. also Sico, Gli effetti
del mutamento delle circostanze sui trattati internazionali (Padova, 1983), p. 282.
288 A/CONF'39!I r/Add.z ; d. Brownlie, Principles of Public International Law (4th edn., 1990),
pp.620-1.

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80
was said in the judgment on what he referred to as the question of 'changed
circumstances', but also expressed the view that
the only change that could possibly be relevant (if at all) would be some change
relating directly to the, so to speak, operability of the jurisdictional clause itself,
and he gave as an example
if the character of the International Court itself had changed in the meantime so
that it was no longer the entity the Parties had in mind,
28
9
It may be doubtful whether such a change would meet the Court's defi-
nition of afundamental change, since it would not 'imperil the existence or
vital development of one of the Parties',
The Court in the Fisheries Jun'sdiction cases stated a further condition to
be fulfilled for termination of a treaty on these grounds:
Moreover, in order that a change of circumstances may give rise to a ground for
invoking the termination of a treaty it is also necessary that it should have resulted
in a radical transformation of the extent of the obligations still to be performed,
The change must have increased the burden of the obligations to be executed to the
extent of rendering the performance something essentially different from that orig-
inally undertaken, 29
The Court considered that this condition was not satisfied, that there had
not been any radical transformation; it explained that
The compromissory clause enabled either of the parties to submit to the Court
any dispute between them relating to an extension of Icelandic fisheries jurisdiction
in the waters above its continental shelf beyond the r z-rnile limit. The present dis-
pute is exactly of the character anticipated in the compromissory clause of the
Exchange of Notes, Not only has the jurisdictional obligation not been radically
transformed in its extent; it has remained precisely what it was in 196I. 29
1
This may be contrasted with the terms of Article 62 of the Vienna Con-
vention, which provides for
A fundamental change of circumstances which has occurred with regard to those
existing at the time of the conclusion of a treaty, and which was not foreseen by the
parties. , ,
In the Court's 1973 judgment, it is not the change of circumstances itself
which must have been unforeseen, but the impact of that change on the
obligations of the party affected. Clearly a change of circumstances which
was totally unforeseeable, but which has occurred, may yet have no, or
minimal, effect as regards the onerousness of the parties' obligations
(though in such circumstances one might well ask whether it could properly
28
9 ICJ Reports, 1973, p. 33 (text and footnote).
290' Ibid., p. 21, para. 43; p. 65, para. 43.
29
1
Ibid.

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be called 'fundamental'); on the other hand, events which the parties could
have foreseen, and perhaps even did foresee, might turn out to have an
unexpected effect on their ohligations.r''"
The Court analysed Iceland's position as a claim, first that the Exchange
of Notes had been terminated on the ground of fundamental change of cir-
cumstances, and secondly that it had ceased to be enforceable on the
ground of failure of consideration (see section 4 of this Chapter, below). In
fact the Icelandic case can be better understood if these two aspects of it,
which the Court dealt with separately, are examined together. Fisheries
were undeniably a vital matter for Iceland; and the change in circumstances
which was causing it concern was the combination of more widespread
acceptance of fishery limits extending to or even beyond 12 miles, and the
threat of more intensive fishing around Iceland as close to its shores as
foreign vessels could legally approach. Iceland regarded the 1961 Exchange
of Notes as tying it to a r z-mile maximum limit, at least in relation to the
two major fishing Powers, a limit which had been generous and innovative
when adopted, but had now been overtaken by events. If the Exchange of
Notes had prevented it from extending the fishery zone, there would, it
seems, have been a case for invoking fundamental change of circumstances,
even though both the changes in the law of the sea and those in fishery tech-
niques might have been regarded as foreseeable; what the Court rightly
pointed out was that the mere obligation to submit any extension of
fisheries jurisdiction to judicial vetting was not the same as forbidding such
extension.
In its discussion on failure of consideration, examined below, the Court
stated in passing that 'changes in law may under certain conditions consti-
tute valid grounds for invoking a change of circumstances affecting the
duration of a treaty' ;2
9
ZA thus for the rule of rebus sic stantibus, the law
itself may apparently be a res. The Court was probably wise to qualify its
dictum with the phrase 'under certain conditions', since unqualified it
would have repercussions for the intertemporal principle which would
require careful consideration.
(3) The Nicaragua v. United States case
In support of his view that the United States objection to jurisdiction in
this case, on the ground that the United States acceptance of jurisdiction
had been validly suspended or terminated before proceedings were
29
2
Lissitzyn states, on the basis of State practice, that 'A change of circumstances may be invoked
even if it was not "unforeseen" in an absolute sense. The parties may have been aware of the possibility
of the change, but for various reasons failed to provide for it expressly': 'Treaties and Changed Circum-
stances (Rebus sic stantibus)', American Journal of International Law, 61 (1967), p. 895 at p. 912. Sico
(Cli effetti del mutamento delle circostanze sui trattati internazionali (Padova 1983), basing himself on
doctrinal developments, refers to 'solely changes which are unforeseeable or at least unforeseen' as
capable of having this effect (p. 291).
29
2A
ICJReports, 1973, p. 17, para. 32; the complete passage is quoted on p. 83, below.

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instituted, should be upheld, Judge Schwebel in his dissenting opinion was
prepared to hold, inter alia, that the United States could rely on the rebus
sic stantibus rule. While preferring the view that Optional Clause declar-
ations are subject to a sui generis regime, he stated:
But even if, contrary to this view, rules for the termination or suspension of
treaties were to be directly applied, or by analogy were to be applied, to the legal
effectiveness of the United States suspension of elements of its 1946 Declaration,
the United States still would be able to argue, and with much reason, that a 'funda-
mental change of circumstances ... has occurred with regard to those existing at
the time of the conclusion' of the declaration within the meaning of Article 62 of
the Vienna Convention on the Law of Treaties. An essential basis of the United
States consent to be bound by its declaration, it may be maintained, was its percep-
tion that that declaration would be one of a near universal number of effective dec-
larations. But the impact of non-adherence to the Optional Clause by the large
majority of States, including so many of the more influential States, and the effect
of the widespread making of reservations permitting declarants to modify or ter-
minate their declarations at will, has been radically to transform the extent of the
obligations still be be performed by the United States under its declaration, should
it not be seen as retaining the unfettered right to modify or suspend it. 293
This argument however raises the question whether it is possible to rely
on a fundamental change of circumstances to justify terminating a treaty at
a time and in a manner not contemplated by the treaty, when the treaty
itself does provide for its own denunciation."?" The United States could, if
it was concerned at the development referred to by Judge Schwebel, give
the appropriate six months' notice at the end of the next following five-year
period contemplated by its Optional Clause declaration; could it really be
asserted that the change had occurred so rapidly as to make it urgent for the
United States to terminate without such notice, while a five-year period was
running?
4. Failure of Consideration as a Groundfor Termination of Treaties?
The question whether 'consideration' (in the sense of the common law
rules as to contracts) is a necessary element in a treaty has already been dis-
cussed above in connection with the Fisheries Junsdiction cases. The Court
appears in those cases to have recognized the existence of an additional
ground for termination of treaties-not contemplated eo nomine in the
293 ICJ Reports, 1984, pp. 620-1, para. 99.
294 Lissitzyn (loc. cit. above, n. 292) considers, on the basis particularly of the precedent of the
United States suspension of the International Load Line Convention in 1941, that 'the presence in a
treaty of a clause limiting its duration or providing for denunciation does not exclude the invocation of a
change of circumstances as a ground for immediately ceasing or limiting performance' (p. 912). It is
suggested that this formulation is too wide, and that the test must be the urgency of the impact of the
changed circumstances.

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Vienna Convention-, parallel to the common law rules as to failure of con-
sideration :295 the idea being that
the object and purpose of the agreement having been fulfilled, it no longer has a
binding effect for
the interested State-or, presumably, for the other State or States parties.
Another way of putting the point, as it arose in the Fisheries Junsdiction
cases, is that where a treaty imposes on each party a continuing executory
obligation, and circumstances change in such a way that one of these obli-
gations ceases to confer any benefit on the other party, the latter party can
then decline to continue conferring the benefit of the performance of its
obligation on the first party. Iceland's claim was in effect that since the 12-
mile fishery zone had become accepted in general international law, the
United Kingdom and the Federal Republic would have been bound to
respect Iceland's 1 z-rnile zone in any event, even if the Exchange of Notes
had never been concluded.f?" As the Court put it,
It is consequently asserted [by Iceland] that if today the r z-mile fishery limit is
generally recognized, there would be a failure of consideration relieving Iceland of
its commitment because of the changed legal circumstances. 297
The Court rejected the Icelandic claim on the following grounds:
While changes in the law may under certain conditions constitute valid grounds
for invoking a change of circumstances affecting the duration of a treaty, the
Icelandic contention is not relevant to the present case. The motive which induced
Iceland to enter into the 1961 Exchange of Notes may well have been the interest of
obtaining an immediate recognition of an exclusive fisheries jurisdiction to a dis-
tance of 12 miles in the waters around its territory. It may be also that this interest
has in the meantime disappeared, since a r z-rnile fishery zone is now asserted by the
other contracting party in respect of its own fishery jurisdiction. But in the present
case, the object and purpose of the 1961 Exchange of Notes, and therefore the cir-
cumstances which constituted an essential basis of the consent of both parties to be
bound by the agreement embodied therein, had a much wider scope. That object
295 The allusion to 'failure of consideration' is in such terms as to suggest that the Court considered it
to be, in municipal law, an independent ground for termination or annulment of a contract. In English
law at least, that is not however the case. The doctrine of 'total failure of consideration' was developed to
deal with the situation which arises when one party had paid money under a contract, and the other
party has been unwilling or unable to perform his side of the bargain, so that the payment has been
made for no benefit. A claim may be made in such circumstances for breach of contract, i.e., the plain-
tiff asserts the validity of the contract in order to rely on it: see McRae v. Commonwealth Disposals
Commission (1951), 84 CLR 377; Anson's Law of Contract (zoth edn. by Guest, 1984), p. 258. A nearer
analogy to the Fisheries Jurisdiction cases is afforded by application of the rules as to failure of consider-
ation when the contract has been frustrated; but there also, this is not itself a ground for setting aside
the contract, but justifies a claim for money had and received (see Anson's Law of Contract, p. 462).
29
6
In view of the Court's recognition in its judgments on the merits that the United Kingdom and
the Federal Republic had established fishing rights so that extensions of Icelandic fisheries jurisdiction
were not opposable to them (ICj Reports, 1974, p. 29, paras. 67-8; p. 198, paras. 51)-60), it does not
appear that this premiss is in fact sound.
297 ICJ Reports, 1973, p. 16, para. 31; p. 61, para. 31. Judge Alvarez in 1952 had contemplated the
case of a claim to terminate a treaty on the ground of changes in the law, on a basis which he regarded as
analogous to the rebus sic stantibus rule: Anglo-Iranian Oil Co., ICJ Reports, 1952, p. 126.

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and purpose was not merely to decide upon the Icelandic claim to fisheries jurisdic-
tion up to 12 miles, but also to provide a means whereby the parties might resolve
the validity of any further claims. This follows not only from the text of the agree-
ment but also from the history of the negotiations, that is to say, from the whole set
of circumstances which must be taken into account in determining what induced
both parties to agree to the 1961 Exchange of Notes. 29
8
I t is possible that today Iceland may find that some of the motives
299
which
induced it to enter into the 1961 Exchange of Notes have become less compelling or
have disappeared altogether. But this is not a ground justifying the repudiation of
those parts of the agreement the object and purpose of which have remained
unchanged. Iceland has derived benefits from the executed provisions of the agree-
ment, ... Clearly it then becomes incumbent upon Iceland to comply with its side
of the bargain, which is to accept the testing before the Court of the validity of its
further claims to extended jurisdiction. Moreover, in the case of a treaty which is in
part executed and in part executory, in which one of the parties has already bene-
fited from the executed provisions of the treaty, it would be particularly inadmis-
sible to allow that party to put an end to obligations which were accepted under the
treaty by way of quid pro quo for the provisions which the other party had already
executed. 3
0 0
Judge Sir Gerald Fitzmaurice closed the expression of his views of the
matter in his separate opinion with a vivid parallel from private law:
I t is obviously galling to a man (but also a common experience) if he finds that
owing to a subsequent decline in prices he has paid more for something than he
need have done. But this is not in itself a ground on which he can ask for his money
back.
3 0 1
The key passages in the Court's treatment of the Icelandic claim are
those that refer to Iceland having already had the benefit of the executed
provisions of the agreement, and to the fact that the treaty was 'in part
executed and in part executory'. The possibility is therefore apparently left
open that in the case of a wholly executory agreement, one where both par-
ties have continuing obligations, if a situation developed in which the obli-
gations on one side became wholly meaningless or without significance for
the beneficiary of them, a claim to termination of the treaty for 'failure of
consideration' might be made.
If this is so, it may perhaps not be among the happier contributions of
the Court to the corpus of international law. In the first place, there seems
29
8
Ie] Reports, 1973, p. 17, para. 32; p. 61, para. 32.
299 The distinction apparently drawn here between 'consideration' and 'motive' is, it is suggested,
more apparent than real; d. the criticisms by Treitel (The Law of Contract (8th edn., 1991), p. 68) of
Thomas v. Thomas (1842), 2 QB 851, with the conclusion that 'consideration and motive are not
opposites; the former concept is a subdivision of the latter. The consideration for a promise is ...
always a motive for promising; but a motive for making a promise is not necessarily consideration for it
in law.'
30 ICY Reports, 1973, p. 18, para. 34; p. 62, para. 34.
31 Ibid., p. 74, para. I I.

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to be little if any support in State practice or in legal writing for 'failure of
consideration' as an independent ground of termination of treaty; and anal-
ogies from municipal law are not convincingly appropriate.P'" Secondly, it
is difficult to foresee circumstances in which the ground could be invoked
which would not also justify reliance on fundamental change of circum-
stances-the Court itself seems to have had difficulty keeping these con-
cepts distinct-, or perhaps on supervening impossibility of performance.
There is also the concept, not mentioned in the Vienna Convention, of ter-
mination by complete performance or execution; as Sinclair observes:
Execution can . . . operate as a cause of termination of treaties, such as treaties
of cession of territory or treaties providing for the making of payments, whose
object and purpose are completed as soon as specific action has been taken by the
parties in fulfilment of the obligations contracted. Part V does not mention
execution as a particular ground of termination. This again may be considered as a
lacuna in the scheme, although a strained interpretation of Article 54, paragraph
(a), may permit the conclusion that, as complete execution of a treaty is necessarily
and by definition in accordance with the treaty, termination as an automatic conse-
quence of complete execution is 'in conformity with the provisions of the treaty'. 33
If one side's performance has become superfluous, it could be contended
that it has performed its side of the bargain, and the other party could claim
that the object of the treaty had been achieved.
5. Procedural Requirements on Termination of Treaties
(I) Termination of treaty or 'right to invoke'for termination of treaty?
The Court's decisions during the period under review have contained
echoes of one of the most hard-fought controversies during the preparation
of the Vienna Convention :3
04
the question whether a State which is entitled
to terminate or suspend a treaty on one of the recognized grounds can uni-
laterally declare it terminated or suspended, and proceed to act on that
basis, or whether some independent control of the validity of its claim is
required. The outcome at Vienna was Articles 65 to 68 of, and the Annex
to, the Convention; the detailed provisions of these texts are not here to the
purpose, but we may note that under the Convention regime any party
wishing to impeach the validity of a treaty, to terminate it, to withdraw
from it or to suspend its operation, has to give notice to the other party or
32 See n. 295, above.
33 The Vienna Convention on the Law of Treaties (znd edn., 1984), p. 165. In the same sense
Plender, 'The Role of Consent in the Termination of Treaties', this Year Book, 57 (1986), pp. 136--7,
who cites as an example an agreement of one State to indemnify another for paying pensions to retired
officials, which comes to an end by execution on the death of the last surviving official.
34 For a brief but lucid account, see Sinclair, The Vienna Convention an the Law afTreaties (2nd
edn., 1984), pp. 226--33.

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86
parties, who may object within a period of (normally) three months. If
objection is taken,
the parties shall seek a solution through the means indicated in Article 33 of the
Charter of the United Nations.P'"
If no solution is reached within twelve months, the matter is to be referred
either to conciliation machinery provided for in the Annex to the Conven-
tion, or in certain cases to the Court.
I t appears evident that, except to the extent that Article 33 of the Charter
may be taken to reflect customary law, 3
06
these provisions of the Vienna
Convention are de lege ferenda, constituting a treaty regime for States par-
ties to the Convention and in respect of treaties to which the Convention is
applicable.P"? The Court has not yet been faced with such a situation; but it
has been concerned, since the adoption of the Convention, with claims to
termination of treaties, and has, perhaps, given some indication of its
attitude to the basic controversial question set out above.
(a) The Namibia case. In the Namibia case in 1971, already discussed,
the Court upheld the power of the General Assembly to terminate the Man-
date for South West Africa, largely-if not entirely-on the basis of a rule
of customary law corresponding to Article 60 of the Vienna Convention,
authorizing termination of treaties in case of breach. It did not, however,
comment on the possibility that such termination might be subject to pro-
cedural requirements and controls, in parallel to what is contemplated by
the Convention; even though Judge Gros took the point in his dissenting
opinion.
308
The Court has been criticized for this;3
0
9 but its reticence on
the point may, taken in isolation, be read as implying that it did not con-
sider that there is in customary law such a requirement, i.e., that a State
has the right not merely to 'invoke the breach as a ground for terminating
the treaty', in the words of Article 60 of the Convention, 310 but to terminate
it. The situation was of course complicated by the fact that the Mandate
contained a compromissory clause, but this had proved, in the South West
Africa litigation, to be unavailing.
(b) The ICAO case. In this case also, there was an existing compromis-
sory clause in the relevant treaties conferring jurisdiction on the Court. The
35 Article 65, paragraph 3, of the Convention.
3
06
It should not be overlooked that, as already observed (above, p. 6 and n. II), Article 33 is, in
terms, confined to disputes 'the continuance of which is likely to endanger the maintenance of inter-
national peace and security'.
37 Vienna Convention, Article 4.
3
08
ICY Reports, 1971, p. 339, para. 3I.
39 Briggs, 'Unilateral Denunciation of Treaties: The Vienna Convention and the International
Court of Justice', AmericanJournal ofInternational Law, 68 (1974), pp. 55-7; Pisillo Mazzeschi, Riso-
luzione e Sospenstone dei Trattati per Inadempimento (Milan, 1984), p. 241.
310 This terminology was carefully chosen: see the Commentary on the draft Articles, A/CONF.391
1I/Add.2, p. 74, para. 6.

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facts have already been set out and discussed above.>' ' It will be recalled
that India, relying in particular on the dicta of the Court in the Namibia
case, and on Article 60 of the Vienna Convention, asserted a right of uni-
lateral termination or suspension of the Chicago Convention and the Tran-
sit Agreement. Pakistan referred to the terms of Article 60, and the views of
the International Law Commission, to assert that
the right arising under the Article is not a right arbitrarily to pronounce the Treaty
terminated. If the other party contests the breach, or its character as a 'material'
breach, there will be a difference between the parties with regard to which the nor-
mal obligations incumbent upon the parties under the United Nations Charter and
under general international law to seek a solution of a question through pacific
means will apply ... In the instant case the Convention and the Transit Agree-
ment have specifically provided a procedure for the settlement of such a difference,
and hence a party alleging 'material breach' would have to invoke it as a ground
while resorting to the procedure for settlement under the Convention and the
Transit Agrecrnent.V"
The Court did not however base its decision that the ICAO Council had
jurisdiction to hear Pakistan's application and consent on this ground. The
reason it did choose for its decision is examined in the next section of the
present Chapter. Anticipating that discussion, we may note that the Court
appears to have taken a wide view of the scope of the jurisdictional clause.
Whether or not it was right to do so, the possibility might exist of a uni-
lateral termination of a treaty containing a narrowly-drawn compromissory
clause, such as not to embrace the alleged termination.V? Is there then a
parallel obligation to employ means of peaceful settlement of disputes
before effectively terminating the treaty?
(c) The Fisheries Jurisdiction cases. In the case brought by the United f
Kingdom against Iceland, the point here examined was raised in the follow-
ingterms:
In the United Kingdom Memorial it is asserted that there is a flaw in the
Icelandic contention of change of circumstances: that the doctrine never operates
so as to extinguish a treaty automatically or to allow an unchallengeable unilateral
denunciation by one party; it only operates to confer a right to call for termination
and, if that call is disputed, to submit the dispute to some organ or body with
power to determine whether the conditions for the operation of the doctrine are
present. In this connection the Applicant alludes to Articles 65 and 66 of the
Vienna. Convention on the Law of Treaties. Those Articles provide that where the
parties to a treaty have failed within 12 months to achieve a settlement of a dispute
by the means indicated in Article 33 of the United Nations Charter (which means
3
1 1
3
1 2
Pleadings (rejoinder of Pakistan), p. 476.
3
13
For example, it might be difficult to bring a termination on the ground of fundamental change of
circumstances within the ambit of a comprornissory clause extending only to disputes over the 'inter-
pretation and application' of the treaty.

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88
include reference to judicial settlement) anyone of the parties may submit the dis-
pute to the procedure for conciliation provided in the Annex to the Convention.V"
A similar contention was made by the Federal Republic of Germany at the
stage of the oral proceedings.v'" The Court's response was the following:
In the present case, the procedural complement to the doctrine of changed cir-
cumstances is already provided for in the 1961 Exchange of Notes, which specifi-
cally calls upon the parties to have recourse to the Court in the event of a dispute
relating to Iceland's extension of fisheries jurisdiction. Furthermore, any question
as to the jurisdiction of the Court, deriving from an alleged lapse through changed
circumstances, is resolvable through the accepted judicial principle enshrined in
Article 36, paragraph 6, of the Court's Statute, which provides that 'in the event of
.a dispute as to whether the Court has jurisdiction, the matter shall be settled by the
decision of the Court.
3 I 6
The Court here justifiably telescoped two distinct obligations, or stages
of obligation. Assuming for the sake of argument that Iceland was under a
customary law obligation parallel to Articles 65 and 66 of the Vienna Con-
vention, then the question whether Iceland could validly denounce, or had
validly denounced, the Exchange of Notes which imposed upon it a juris-
dictional obligation, had to be referred to 'some organ or body with power
to determine' that point. In itself the jurisdictional obligation created by the
Exchange of Notes was not appropriate for this; it related to a specific
expected dispute-the validity of extension of Icelandic fishery jurisdic-
tion. It was not a compromissory clause of the standard kind, extending
(e.g.) to disputes over the 'interpretation or application' of the agreement
constituted by the Exchange of Notes. But, as the Court pointed out, the
principle of the competence de fa competence meant that the Exchange of
Notes also conferred jurisdiction on the court to decide whether it had jur-
isdiction under the Exchange of Notes. It was therefore appropriate to, as it
were, merge this latter jurisdiction with that of the 'organ or body' contem-
plated by the general rule.
In short, the Court did not rule directly on the question of 'right to ter-
minate' v. 'right to invoke': it disposed of the point by observing that the
'procedural complement to the doctrine of changed circumstances' was
already provided for in the Exchange of Notes, and that 'any question as to
the jurisdiction of the Court, deriving from an alleged lapse through
changed circumstances, is resolvable' through the principle of the com-
petence de fa competence. The thesis that a claim of termination for change
of circumstances is subject to a precondition of judicial endorsement can
never be tested where the relevant treaty obligation is itself jurisdictional,
because such an obligation contains within itself the possibility of judicial
verification of its existence or applicability. The Fisheries Jurisdiction
decision therefore is neither an endorsement nor a rejection of that
3
14
ICJ Reports, 1973, p. 21, para. 44.
3
15
Ibid., p. 65, para. 44; Pleadings, vol. 2, p. 133.
3
16
ICJ Reports, 1973, pp. 21 and 65-6, para. 45.

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thesis.J"? Sir Gerald Fitzmaurice, in his separate opinion, appears to have
distanced himself even from what the Court did say on the subject: he states
that on the question of 'changed circumstances' he has nothing to add to 'what
is stated in paragraphs 35-43 of the Court's judgment', thus excluding para-
graphs 44 and 45, which deal with the 'procedural complemenr'A'f
(d) The WHO/Egypt Agreement case. For the first time, the Court
made direct reference to the procedural provisions of the Vienna Conven-
tion in the case concerning the 1951 Agreement between WHO and Egypt,
in 1980; this was however not to Articles 65., referred to above, but to
Article 56, paragraph 2, which provides that a party wishing to denounce or
withdraw from a treaty which contains no provision for denunciation has to
give not less than twelve months' notice of its intention. In its advisory
opinion the Court had found that international organizations and host
States were under 'mutual obligations incumbent upon them to resolve the
problems attendant upon a revision, termination or denunciation of a host
agreement'v-"? The Court continued:
A further general indication as to what those obligations may entail is to be found
in the second paragraph of Article 56 of the Vienna Convention on the Law of
Treaties . . . Clearly, these provisions also are based on an obligation to act in good
faith and have reasonable regard to the interests of the other party to the treaty. 3
2 0
This finding is far from explicit on whether or to what extent Article 56,
paragraph 2, reflects a customary law rule requiring notice, and there can
be no doubt that the Court intended to be non-committal on the point. Fur-
thermore, the legal basis which the Court discerned for the rule is of less
relevance to a requirement to submit disputes over termination of a treaty
to conciliation or judicial settlement. Little can therefore be gleaned from
the 1980 advisory opinion, save that the Court's general attitude to the
Vienna Convention is to see in it a set of useful definitions of practical and
desirable rules, some of which may now, and some of which may in the
future, be able to claim the status of established custom.>"
I t is suggested that the decisions reviewed above are consistent with the
view that in present customary international law, the termination of a treaty
]I7 Contra, apparently, Sinclair, The Vienna Convention on the Law of Treaties (and edn., 1984),
pp. 195-6, who detects a flavour of judicial approval in the reference to the 'procedural complement to
the doctrine of changed circumstances'. The United Kingdom cited (Pleadings, vol. 2, p. 148) as State
practice statements by France in the Free Zones case and Belgium in the Sino-Belgian Treaty case, and
Rousseau and Sibert as doctrine. Rousseau is quoted as requiring either agreement of the parties on the
change of circumstances, or a judicial or arbitral decision: since the parties can put an end to any treaty
by agreement, on whatever grounds they see fit, the first head of this requirement would rob the alleged
rule of any real existence. There is a similar reference to the consent of the parties in the Federal Repub-
lic argument before the Court: Pleadings, vol. 2, p. 133.
3
18
ICJ Reports, 1973, p. 33
3
19
ICJ Reports, 1980, p. 94, para. 46.
3
2 0
Ibid., pp. 94-5, para. 47 The Court also sees in the text 'some indications as to the possible
periods involved': ibid., p. 96, para. 49.
3
21
Cf. the remarks earlier in this series: this Year Book, 61 (1990), pp. 90-1; 62 (1991), p. 3 and
n.8.

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9
by unilateral act on one of the recognized grounds is not subject to an obli-
gation to exhaust means of peaceful settlement of disputes to any greater
extent, or in any more pre-conditioning degree, than any other act which is
regarded by the actor as lawful and by another State as unlawful. The pos-
ition is well expressed by Haraszti, discussing the rebus sic stantibus
clause, but in terms applicable more generally:
if the dispute cannot be settled with the means available for the parties, in the last
resort the party invoking the clause will be entitled to unilateral action. The recog-
nition that the mere objection of the party protesting against the application of the
clause could definitively frustrate the termination of a treaty on the plea of funda-
mental changes of circumstances would create an untenable situation. This is the
conclusion we shall have to come to as long as international law does not recognize
an obligation of States to have recourse to the means available for settling disputes
with a binding force. That is, as long as there is no compulsory jurisdiction in
international relations . . . As a matter of course . . . States should proceed with a
deep sense of responsibility. A State which by invoking a change of circumstances
terminates a treaty without sound foundations would be liable for a breach of
treaty, and this act establishes the international responsibility of the State with all
the consequences international law attaches to such responsibility. 3
2 2
(2) Survival of the compromissory clause
Whether or not there exists in customary international law an obligation
to submit any purported unilateral termination of treaty to third-party
settlement procedures, it is evidently desirable that this should so far as
possible be ensured. During the period under review, the decisions of the
Court reveal a tendency toward preservation of compromissory clauses in
treaties which, in the contention of one party, are no longer in force, so as
to permit of their being invoked to test the validity of that assertion.
(a) The ICAO Appeal case. In its 1972 judgment in this case in particu-
lar, the Court went some way towards conferring on compromissory clauses
in treaties a degree of immortality, or at least of survivorship in relation to
the provisions of the same treaty, which might be difficult to justify on
traditional treaty-law grounds. The relevant facts of the case have already
been indicated.i"? as have the arguments employed in support of the
Court's finding that it did itself have jurisdiction. In order to hold that the
ICAO Council had had jurisdiction the Court had to deal with the conten-
tions that the treaties (the Chicago Convention and the Transit Agreement)
had been suspended and never revived.
The Court considers however, that for precisely the same order of reason as has
already been noticed in the case of its own jurisdiction in the present case, a mere
unilateral affirmation of these contentions-contested by the other party-cannot
be utilized so as to negative the Council's jurisdiction. The point is not that these
3
2 2
'Treaties and Fundamental Change of Circumstances', Recueil des cours, 146 (1975-111), p. 86.
3
23

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contentions are necessarily wrong but that their validity has not been determined.
Since therefore the Parties are in disagreement as to whether the Treaties ever were
(validly) suspended or replaced by something else; as to whether they are in force
between the Parties or not; and as to whether India's action in relation to Pakistan
overflights was such as not to involve the Treaties, but to be justifiable aliter et
aliunde ;-these very questions are in issue before the Council, and no conclusions
as to jurisdiction can be drawn from them, at least at this stage, so as to exclude ipso
facto and a priori the competence of the Council.V"
Of the reasons in respect of the Court's decision in the case of its own jur-
isdiction, that referred to was essentially the following:
Nor in any case could a merely unilateral suspension per se render jurisdictional
clauses inoperative, since one of their purposes might be, precisely, to enable the
validity of the suspension to be tested. If a mere allegation, as yet unestablished,
that a treaty was no longer operative could be used to defeat its jurisdictional
clauses, all such clauses would become potentially a dead letter, even in cases like
the present, where one of the very questions at issue on the merits, and as yet unde-
cided, is whether or not the treaty is operative-i.e., whether it has been validly
terminated or suspended. The result would be that means of defeating jurisdic-
tional clauses would never be wanting. 3
25
This is correct only to the extent that the jurisdictional clause in ques-
tion, according to its terms, enabled the relevant tribunal to judge whether
the treaty was or was not 'no longer operative'. Thus in the leAO case, the
simple question, Does India possess a right, dehors the treaties, to termin-
ate or suspend them? cannot be brought within the terms of a clause pro-
viding for resolution of disputes 'relating to the interpretation or the
application' of the treaties. What India was claiming, however, was a right
of termination on the grounds of breach of the treaties by Pakistan; and the
question whether there had been such a breach, if this was disputed (as it
was), was eminently a dispute as to the interpretation of the treaties. Thus
the jurisdiction of the ICAO Council could not be excluded a priori; but
how far did it extend? The Court appears to have, contemplated that once
seised of part of the dispute, the Council could then deal with all of it: that
if the Council found that there had been a breach of the treaties by Pakis-
tan, it could then rule on whether or not India had, and could consequently
exercise, a right of termination for breach.
A source of confusion in the case was that India was putting forward two
closely-related arguments, which have however to be clearly distinguished.
The first was that the right of suspension or termination existed dehors the
treaty, and thus did not fall to be.judged according to the terms of the com-
promissory clause; the second was that the treaties had been suspended or
terminated, and thus the compromissory clause had also ceased to operate.
The passage quoted from the judgment is a full and sufficient answer to the
second argument, but leaves the first untouched. It is revealing that the
3
24
ICY Reports, 1972, p. 64, para. 11.
325 Ibid., pp. 53-4, para. 16(b); see the comment on this passage above, p. 38.

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Court treats the two Indian arguments as though they were no more than
variants of a single contention: 'To put the matter in another way', it begins
a subsequent paragraph, and continues:
these contentions are essentially in the nature of replies to the charge that India is
in breach of the Treaties: the Treaties were at the material times suspended or not
operative, or replaced,-hence they cannot have been infringed. India has not of
course claimed that, in consequence, such a matter can never be tested by any form
of judicial recourse. This contention, if it were put forward, would be equivalent to
saying that questions that prima facie may invoke a given treaty, and if so would be
within the scope of its jurisdictional clause, could be removed therefrom at a stroke
by a unilateral declaration that the treaty was no longer operative. The acceptance
of such a proposition would be tantamount to opening the way to a whole nullifi-
cation of the practical value of jurisdictional clauses by allowing a party first to pro-
pose to terminate, or suspend the operation of a treaty, and then to declare that the
treaty being now terminated or suspended, its jurisdictional clauses were in conse-
quence void, and could not be invoked for the purpose of contesting the validity of
the termination or suspension, whereas of course it may be precisely one of the
objects of such a clause to enable that matter to be adjudicated upon. Such a result,
destructive of the whole object of adjudicability, would be unacceptable.V"
I t is suggested that the conclusion is too sweeping and too pessimistic:
everything depends on the terms of the compromissory clause, and the
grounds alleged for the termination. As already noted, if the cornpromis-
sory clause is in the usual form, extending to disputes as to the interpret-
ation or application of the treaty, this cannot be said necessarily to apply to
disputes as to termination; but if, as will almost always be the case, the dis-
pute as to termination turns on the question of interpretation-e.g.,
whether a given article has been breached-the compromissory clause will
pro tanto come into effect.
(b) The Fisheries Jurisdiction cases. These cases also have already been
examined in other contexts. What is of interest here is the way in which
Judge Sir Gerald Fitzmaurice summed up the Icelandic arguments in order
to show their unacceptability:
Reduced to its simplest terms, the process is to argue that a jurisdictional clause,
even if it is otherwise duly applicable on its own language, can be ipso facto nulli-
fied or rendered inapplicable by purporting (unilaterally) to terminate or suspend
the instrument containing it, or (as in the present case) to declare it to have become
inoperative or to be spent, and the jurisdictional clause with it.
327
The echo of the leAOAppeal case, and of the Court's approach to the prob-
lems of jurisdiction where a treaty has purportedly been terminated, will be
evident.
(c) The Hostages case. This was not a case in which it was asserted that a
treaty had been terminated; but there was a suggestion that the treaty, or
3
26
Ibid., pp. 64-5, para. 32.
3
27
ICJ Reports, 1973, p. 31, para. 12; p. 75, para. 12.

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93
the compromissory clause, could not be invoked. One of the bases of juris-
diction asserted by the United States was a Treaty of Amity, Economic
Relations and Consular Rights between the United States and Iran. The
compromissory clause in that treaty was in a fairly standard form, and read:
Any dispute between the High Contracting Parties as to the interpretation or
application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the International Court of Justice, unless the High Contracting Par-
ties agree to settlement by some other pacific means.v'"
The Court was able to find, successively, that there was no question of
agreement to settle the dispute by other means; that the intention of the
clause was to provide for a right of unilateral recourse to the Court; that
the United States was not debarred from relying on the treaty by reason of
the counter-measures it had adopted; 3
2
9 and that there had been no sugges-
tion that the treaty was not in force at the relevant time.
Before leaving the question of jurisdiction under the treaty, the Court
added a further argument:
The very purpose of a treaty of amity, and indeed of a treaty of establishment, is
to promote friendly relations between the two countries concerned, and between
their two peoples, more especially by mutual undertakings to ensure the protection
and security of their nationals in each other's territory. It is precisely when difficul-
ties arise that the treaty assumes its greatest importance, and the whole object of
Article XXI, paragraph 2, of the 1955 Treaty was to establish the means for arriv-
ing at a friendly settlement of such difficulties by the Court or by other peaceful
means. It would, therefore, be incompatible with the whole purpose of the 1955
Treaty if recourse to the Court under Article XXI, paragraph 2, were now to be
found not to be open to the parties precisely at the moment when such recourse was
most needed.U"
It is not immediately clear what possible objection to jurisdiction it is
intended to refute by this argument; from its placing, however, it seems
that it is intended to reinforce the argument that the counter-measures
taken by the United States did not disqualify it from relying on the treaty.
In the view of Judge Morozov, dissenting, there were 'grave violations of
the provisions of general international law and the Charter of the United
Nations';33
1
he did not in terms condemn them also as breaches of the
Treaty of Amity.
The final sentence of the passage just quoted from the judgment dis-
plays, at least, an inclination to rule, in case of doubt, in favour of the appli-
cability of the compromissory clause. It is also perhaps somewhat
dangerously widely expressed: the test for the applicability of a compromis-
3:>8 Quoted in ICJ Reports, 1980, p. 27, para. 51.
3:>9 On this question, see Chapter II I, section 2, above.
33
1
Ibid, p. 54; the gravamen of the charge made by Judge Morozov appears to be that, while resort-
ing to the Court, the United States was also employing measures of compulsion and acting as judge in
its own cause.

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94
sory clause is surely not whether the circumstances are such that it is 'most
needed', but whether the dispute falls within the terms of the clause, so as
to benefit from the mutual consent of the parties which is creative of juris-
diction.F'"
6. Desuetude
France contended in the Nuclear Tests cases that the 1928 General Act
for the Pacific Settlement of Disputes, upon which Australia and New
Zealand founded the Court's jurisdiction,
est tombe, apres l'effondrement du systeme de la SdN, dans une desuetude si mar-
quee que le silence des Etats ason endroit, bien loin de signifier une volonte tacite
de reconduction integrale, n'a denote qu'une indifference si profonde que"meme
une denonciation formelle paraissait superfetatoire'. 333
The Court made no finding whatever on the validity or otherwise of the
General Act, but Judges Onyeama, Dillard, Jimenez de Arechaga and Sir
Humphrey Waldock, in their joint dissenting opinion, dealt with this point,
among many others. Their view was clear: they rejected the French conten-
tion, observing that
Desuetude is not mentioned in the Vienna Convention on the Law of Treaties as
one of the grounds for the termination of treaties, and this omission was deliberate.
As the International Law Commission explained in its report on the Law of
Treaties:
... while 'obsolescence' or 'desuetude' may be a factual cause of the termina-
tion of a treaty, the legal basis of such termination, when it occurs, is the con-
sent of the parties to abandon the treaty, which is to be implied from their
conduct in relation to the treaty.
In the present instance, however, we find it impossible to imply from the conduct
of the parties in relation to the 1928 Act, and more especially from that of France
prior to the filing of the Application in this case, their consent to abandon the
Act. 334
Judge de Castro was reluctant even to admit the possibility of desuetude:
'To admit tacit abrogation would be to introduce confusion into the inter-
national system' ;335 he too insisted that proof of the intention of the parties
would be required, and was lacking in the cases before him.
The judgment in the case, being based on totally independent grounds,
does not contradict the views expressed in these opinions; and of the other
judges who appended opinions, only Judge Gros expressly cast doubt on
the continuing validity of the General Act-he described it as 'formally in
33
2
As Judge Gros observed in another context, 'To say that a power is necessary, that it logically
results from a certain situation, is to admit the non-existence of any legal justification': Namibia, dis-
senting opinion, ICJ Reports, 1971, p. 339, para. 32.
333 Letter of 16 May 1973 from the French Ambassador to the Registrar, Pleadings, vol. 2, p. 354.
334 IC] Reports, 1973, pp. 337-8, para. 54. The reference given is to ILC Yearbook, 1966, vol. 2,
P237
335 ICJ Reports, 1973, p. 381.

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95
force if one took account only of express denunciation, but somewhat dor-
mant' .33
6
The Nuclear Tests cases may accordingly be regarded as some
authority for asserting that the view of the International Law Commission,
quoted in the joint dissenting opinion, that the legal basis of desuetude is
solely the consent of the parties, is correct. 337
There remains, however, a question: when it is said, as it was by the
International Law Commission and by the four authors of the joint dissent-
ing opinion, that desuetude results from the consent of the parties to ter-
minate the treaty, does this refer, in the case of a multilateral treaty, to all
the parties? The Vienna Convention recognizes (Article 58) the possibility
of suspension of a multilateral treaty as between two or more of the parties
to it by agreement among themselves (provided certain conditions are satis-
fied); but a party may only withdraw from a treaty (in the absence of pro-
vision for withdrawal in the treaty) 'by consent of all the parties after
consultation with the other contracting States' (Article 54). In the particu-
lar case of the General Act, provision was however made for its denuncia-
tion at the end of each successive five-year period of its existence. 33
8
Thus
the consent of any two or more parties to put an end to the General Act as
far as they were concerned could-and should
339-have
been given practi-
cal form in the shape of denunciations, and a mere supervening consensual
desuetude between some only of the parties to the General Act must be
regarded as excluded.
The Nuclear Tests cases also highlight an aspect of the matter which may
underlie the disagreement between Professor Capotorti-"'" and the Inter-
national Law Commission as to the legal nature of the process of desuetude
of treaties. Essentially, Capotorti's objection to the consensual interpret-
ation is that a practice creative of custom is involved, and custom does not,
as was once believed, depend on tacit consent.>" The 1928 General Act
was however a treaty of such a nature that its provisions could hardly be
superseded by a practice creative of custom, the reason being that it primar-
ily created options or faculties rather than obligations. If a treaty commits
the parties to a particular course of conduct in circumstances which
33
6
Ibid., p. 296, para. 36. Another judge sitting in the cases, who appended no opinion to the judg-
ments, has since classified the problem as one of consent and of interpretation of the will of the parties:
Ruda, 'Terrninacion y Suspension de los T'ratados', Essays in honour ofJudge Elias (1992), p. 108.
337 This is also supported by the 1977 decision of the Arbitral Tribunal in the Anglo-French Mari-
time Delimitation, cited by Plender, 'The Role of Consent in the Termination of Treaties', this Year
Book, 57 (1986), p. 142; contra, Capotorti, 'L'Extinction et la suspension des traites, Recueil des
cours,134 (I971- III ), pp. 51<r-2 0 .
33
8
Article 45 of the General Act, reproduced in ICY Pleadings, Nuclear Tests, vol. 2, p. 223.
339 In application of the principle that 'States will be presumed to use the most appropriate means of
creating rights and obligations': see this Year Book, 60 (1989), pp. 73 ff.
34 See n. 338 above.
34
1
The question may however sometimes be little more than one of degree; as observed in a previous
article in this series, commenting on the possibility of an opiniojuris shared by only two States, 'If the
matter in dispute is one which concerns solely the reciprocal rights and obligations of the two States
concerned, ... the line between consent and opinio juris is blurred to the point of invisibility': this
Year Book, 61 (1990), p. 51, n. 193.

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9
6
regularly or frequently arise, and a practice grows up, mutually accepted,
whereby they act otherwise, then it is reasonable to assess the result in
terms of bilateral custom.>" Where however a treaty simply establishes a
system of dispute-settlement to which the parties may have recourse, it is
reasonable to require something more than the fact that that system has for
many years not been used before concluding that the treaty no longer
binds. There may be explanations for the non-use which are quite compat-
ible with recognition of the continued existence, in reserve, as it were, of
the treaty. 343 To require proof of consent to consign the treaty to oblivion
does not differ in kind from accepting consistent divergent practice in the
case of a treaty of the first category; it is rather a difference of degree.
34
2
Recognized in the Right ofPassage case: d. this Year Book, 61 (1990), p. 102.
343 There are States (Colombia, Haiti, Panama, Uruguay) which accepted jurisdiction under the
Optional Clause 50 years or more ago, but which have never brought proceedings before the Court, or
been respondent to such proceedings based on such acceptance. Change of circumstances may perhaps
justify abrogation of such declarations (as argued by Judge Schwebel in the Nicaragua v. United States
case, above, Chapter V, section 3(3; but it would be a bold contention to say that the obligations
under these acceptances had fallen into desuetude (particularly if they can in any event be withdrawn at
will: d. separate opinion of Sir Robert Jennings in Nicaragua v. United States, Ie] Reports, 1984,
p. 550).

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THE LAW AND PROCEDURE OF THE

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