4. the Law and Procedure of the ICJ Treaty Interpretation - Hugh Thirlway

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  • THE LAW AND PROCEDURE OF THEINTERNATIONAL COURT OF JUSTICE 1960-1989*

    PART FOUR

    By HUGH THIRLWAY!

    II. TREATY INTERPRETATION AND OTHER TREATYPOI NT S (continued)

    Division B: Other Treaty Points

    CHAPTER I: PRELIMINARY MATTERSI. The pactum de contrahendo and the 'Obligation to Negotiate' 32. Privity of Contract: Private Law Agreements and Parallel Treaties 10

    CHAPTER II: CONDITIONS OF THE FORMATION OF AGREE-MENTI. 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 I3. 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 3 I

    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 ACTION1. 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 CorrespondingObligations 40

    3. Implied Powers in Treaty 424. Third Parties and Treaties: pactum in favorem tertii .. 43

    CHAPTER IV: CONDUCT INCONSISTENT WITH A TREATY1. Duty not to Deprive a Treaty of its Object and Purpose 482. Breach of Treaty: the Relevance of Municipal Law 543. The Doctrine of Approximate Application following a Breach of

    Treaty 594. Breach of Treaty and Implementation of Compromissory

    Clauses .. 60

    CHAPTER V: TERMINATION OF TREATIESI. Termination of Treaties containing no Provision for Denunciation 632. Termination (or Suspension) of Treaty on account of Material

    Breach 713. 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 8 I

    4. Failure of Consideration as a Ground for Termination of Treaties? 825. Procedural Requirements on Termination of Treaties

    (I) Termination of treaty or 'right to invoke' for termination oftreaty? 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 3WOTAN: '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 anassortment of points that had arisen in connection with treaties during theperiods 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 anyparticular analytical scheme. Some of these points, or points closely related tothem, have arisen again during the period now under review (which is, forreasons explained in the previous article, I 1954-1989); in those years theInternational Court has, as it happens, had occasion to deal with numerousand more su bstantial points of treaty-law, so that a certain amount of schemati-zation therefore seems appropriate. The points arising will be examinedbroadly in the order in which they might arise in the course of the life of atreaty, which is in fact also more or less the order in which provision is or mighthave been made for them in the text of the Vienna Convention on the Law ofTreaties. It should however perhaps be emphasized that only points arising in,or in relation to, the Court's decisions during the period are examined; noattempt is made to cover the whole field of treaty-law, or even the whole scopeof the Vienna Convention.

    CHAPTER I:

    PRELIMINARY MATTERS

    1. The pactum de contrahendo and the Obligation to NegotiateCommenting in his 1951 article on the South-West Africa advisory

    opinion, Fitzmaurice concluded that in that decisionThe 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 factthere often are instances of countries undertaking to enter into negotiations on agiven 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 concerning RailwayTraffic between Lithuania and Poland; that an obligation to negotiate did notimply an obligation to reach agreement." The concept of an obligation tonegotiate 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 ofJudge Lauterpacht in the period1954--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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  • THE LAW AND PROCEDURE OF4the law of the sea, following the Court's influential judgment in the NorthSea Continental Shelf cases in 1969. Some further study of the concept inthe jurisprudence antedating the period now under review may thus beenlightening.

    The basic difficulty is that if a pactum de contrahendo, an obligation toconclude an agreement, defines the content of the agreement in specificterms, specifying that the agreement will commit a party to perform orrefrain from certain acts, then the pactum will be legally a superfluity, asbeing 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 acertain result is secured, it will be virtually meaningless unless the modali-ties of achievement of the result are capable of objective determination; ifthese modalities can only be settled by agreement, the whole obligationbecomes in practice unenforceable.

    The situation asserted by Poland to exist in theRailway Traffic case fell intothe first category: as a result, it was said, of an acceptance by Lithuania andPoland of a recommendation of the League of Nations Council to negotiate inorder to re-establish peaceful relations, Lithuania had incurred an obligationto open a particular transfrontier section of railway to traffic, since, it wassuggested, this reopening was essential to good inter-State relations."

    There was in fact rather more to the Polish argument than appears fromthe Permanent Court's judgment, since Lithuania did not conceal the factthat its refusal to reopen the railway was intended to bring pressure to bearon Poland to obtain a recognition of Lithuanian claims in another sphere;and this was tantamount to a recognition that the reopening of the railwayformed part of any resumption of normal relations. It was therefore notunreasonable to contend that, while the modalities of such reopening couldonly be settled by agreement, there had been an acceptance in principle ofan obligation to reopen the line. However, as soon as an indeterminable,subjective, element was admitted, the obligation became, as the Court ineffect found, unenforceable and therefore no more than a commitment tobona fide negotiations.

    Similarly in the South West Africa case, the reference in the Charter tothe agreements by which mandated territories might be brought within thetrusteeship 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 partiesmust be free to accept or reject the terms of a contemplated agreement. No partycan impose its terms on the other party. 5

    There was however an a fortiori aspect to the matter, since the relevant textin the Charter (Article 77, paragraph 2)

    4 PCI], Series C, No. 54, pp. 229, 370.5 ICJReports, 1950, p. 139.

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  • THE INTERNATIONAL COURT OF JUSTICE 5moreover, presupposes agreement not only with regard to its particular terms, butalso as to which territories will be brought under the Trusteeship System."

    It was in this light that the Court also rejected the contention that SouthAfrica as Mandatory was under an obligation to enter into negotiations witha view to concluding a Trusteeship Agreement. Reference was made toArticle 80 of the Charter; after providing in paragraph I that nothing inChapter XII of the Charter was to be construed as in itself altering anyrights or the terms of any international instruments, Article 80 continues:

    2. Paragraph I of this Article shall not be interpreted as giving grounds for delayor postponement of the negotiation and conclusion of agreements for placing man-dated and other territories under the trusteeship system as provided for in Article77

    For Judge De Visscher, this provision, coupled with the 'clear intent ofthe authors of the Charter to substitute the Trusteeship System for theMandates System', signified thatthe 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 negotiationsand 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 obligationfor mandatory States to enter into negotiations with a view to concluding aTrusteeship Agreement. But an obligation to negotiate without any obligation toconclude an agreement can hardly be derived from this provision, which expresslyrefers 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 concludingan agreement'. The Court however continued:

    Moreover, [Article 8o] refers to the negotiation and conclusion of agreements forplacing 'mandated and other territories under the Trusteeship System as providedfor in Article 77'. In other words, it refers not merely to territories held underMandate, 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 viewto concluding Trusteeship Agreements for those territories. 9

    Against this background, the Court in the 1969 judgment introduced anobligation 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 THE LAW AND PROCEDURE OF

    from any such obligation previously noticed in international law. In thefirst place, in the Railway Traffic case, the obligation on Poland andLithuania resulted from their acceptance of a recommendation of theLeague of Nations Council; it was therefore an obligation of a treaty-lawcharacter, 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 theirrelative geographical positions, as a matter of general customary law. TheCourt suggested thatthis obligation merely constitutes a special application of a principle which under-lies all international relations, and which is moreover recognized in Article 33 ofthe Charter of the United Nations as one of the methods for the peaceful settlementof international disputes. 10

    Some doubt may however be felt whether this is to the point. Certainlythere is an obligation under the Charter, and probably in general law, tosettle disputes by peaceful means, for example by agreement; certainlyagreement by States parties to a dispute settles the dispute and is conclusivefor 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 Article33 applies in terms only to disputes which threaten international peace andsecurity; I I the point is that for all other disputes the law does not requirethat they be settled, and settled by one of the means specified, but simplythat if they are to be settled, they must be settled peacefully, and thus byone of the means specified. Thus the obligation to negotiate continentalshelf boundaries is more of an innovation in international law than theCourt 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 principlewhich is said to underlie all international relations. There is, it seems, a generalobligation 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 generalobligation to negotiate. A State which is asked by another State to enter intonegotiations with a view to the conclusion of an agreement for the settlement of cer-tain relations may, without doing anything contrary to law, refuse to do so, unlessthere be a specific rule requiring negotiation.

    As for Article 33 of the Charter, which is mentioned in the Judgment, thatArticle 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, 1945~6, p. 263) questions whether 'this is an

    identifiable category of international dispute', since 'theoretically any international dispute could easilybe brought within this classification in given political circumstances'.

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  • THE INTERNATIONAL COURT OF JUSTICE 7continuance of which is likely to endanger the maintenance of international peaceand security'. And, even within those limits, Article 33 by no means creates anabsolute obligation to seek. by means of negotiation, a solution to the dispute. Theobligation imposed by Article 33 is to seek the solution to a dispute by pacificmeans; negotiations are but one of the pacific means which the aforesaid Charterprovision mentions as capable of being utilized. It is, in other words, an alternativeobligation; 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 thedispute 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 ofreaching a settlement of it. The Court in the North Sea cases howeverdefined the content of the obligation to negotiate in these terms:the parties are under an obligation to enter into negotiations with a view to arrivingat an agreement, and not merely to go through a formal process of negotiation as asort 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 conductthemselves that the negotiations are meaningful, which will not be the case wheneither 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 oneof the parties had proposed from the beginning. One is entitled to ask, whynot?

    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 theparties and from the terms agreed in its settlement, is that if no settlementis agreed, and a tribunal is entrusted with the task of judging the matter, itwill apply criteria other than the terms of the agreement which might havebeen reached. Not so in matters of shelf delimitation: here the tribunal'sdecision is, in a very real sense, 'an alternative to the direct and friendlysettlement of such disputes between the parties'. The tribunal's decision isthus intended to be a substitute for an agreement; or rather, will be anagreement at the second degree-the agreement to confer jurisdiction beingan agreement to accept a future settlement handed down, in place of animmediate settlement achieved by negotiation.

    The relationship between the 'law' and the 'agreement', in questions indispute between States, is thus reversed: normally, when States agree onthe settlement of a dispute, the terms of the agreement are dictated by, or atleast 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 THE LAW AND PROCEDURE OF

    delimitation, on the other hand, the tribunal has virtually to determinewhat the two States would have agreed on, had they patiently negotiatedtoward an 'equitable solution', dictated by 'equitable principles'. 14 As wassuggested 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. 15The effective substitution of the tribunal for the parties emerges in particu-lar from the 1982 judgment in the case of the Continental Shelf (TunisialLibyan Arab Jamah iriya) , to be examined in a moment.

    It must, it is suggested, be concluded that the obligation defined in theNorth Sea cases is, unlike that in the Railway Traffic case, an obligation toreach 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 somewhatinto the background. The element of agreement however remains strong.In the Tunisia/Libya case, the Court based its delimitation to a large extenton a line which resulted de facto from the meeting of concessions grantedby the two parties. 16 In explanation of this aspect of its decision, the Courthad 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 byconduct from pressing claims inconsistent with such conduct on some such basis asestoppel. The aspect now under consideration of the dispute which the Partieshave referred to the Court, as an alternative to settling it by agreement betweenthemselves, is what method of delimitation would ensure an equitable result; and itis evident that the Court must take into account whatever indicia are available ofthe line or lines which the Parties themselves may have considered equitable oracted upon as such if only as an interim solution affecting part only of the area to bedelimited. 17

    The Court could hardly have made it clearer that it was acting, not on thebasis of an agreement which the parties were deemed to have made, but onthe 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 successivejudgments on delimitation is that an agreed delimitation and a judicial delimitation would be identical ineffect. 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 anotherdomain; yet such agreed delimitations are perfectly valid. See Perspectives du droit de la delimitationmaritime (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 andInterpretation 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 theauthority of the North Sea judgment, they were subject. 18

    The Chamber dealing with the Gulf of Maine case also emphasized theaspect of agreement, and the need for negotiation; it played down evensuch elements of positive, specific, rules of law as were discernible in thereferences 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 twoparagraphs is simple, yet its importance must not be underestimated. It must notbe seen as a mere 'self-evident truth'. The thrust of this principle is to establish byimplication that any delimitation of the continental shelf effected unilaterally byone 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 reachingagreement, and to do so in good faith, with a genuine intention to achieve a positiveresult. 19

    As to customary law, it also insisted that 'the principle of internationallaw-that delimitation must be effected by agreement' was one of the 'prin-ciples already clearly affirmed by customary international law' .20 It definedthe first element of what it regarded as the 'fundamental norm' as follows:

    No maritime delimitation between States with opposite or adjacent coasts maybe effected unilaterally by one of those States. Such delimitation must be soughtand effected by means of an agreement, following negotiations conducted in goodfaith and with the genuine intention of achieving a positive result. Where, how-ever, such agreement cannot be achieved, delimitation should be effected byrecourse to a third party possessing the necessary competence. 21Judge Gros, dissenting, however, having summed up the law as defined bythe Chamber (following in this the 1982 Convention on the Law of the Sea)as 'agreement + equity', considered that 'As the concept of agreement hasnothing to do with the work of the judge, only equity remains'. 22

    In the 1985 decision of the Court in the case concerning the ContinentalShelf (Libyan Arab Jamahinya/Malta) the Court indicated that it had aduty to consider whether, as in the Tunisia/Libya case, there were any'indicia . . . of the [delimitation] line or lines which the Parties themselvesmay 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 maybe relegated to a footnote. The provisions of Articles 74 and 83 of the Convention on delimitation of theEEZ 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 theStatute 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 THE LAW AND PROCEDURE OF

    any; otherwise the decision does not add any significant material on thepoint now under discussion.

    It appears, in conclusion, that international law has acquired, on theimpulsion of the North Sea decision, and now of the United Nations Con-vention on the Law of the Sea, a genuine pactum de contrahendo. Itescapes the dilemma posed at the beginning of this section: the solution tobe arrived at by negotiation and agreement (the delimitation) is not soclearly predefined that the intermediate obligation to agree becomes mean-ingless ;24 yet the obligation can be judicially enforced by reference to theamorphous concept of equity-and indeed there is some hint in the GulfofMaine decision of a duty to seek judicial settlement. The duty to negotiateand 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 ofthe patrimony of a coastal State, which appertains to it ipso facto and abinitio. 26

    2. Prioity ofContract: Priuate Law Agreements and Parallel TreatiesThe 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, andwhich were discussed by Fitzmaurice in his 1957 article."? It was contendedby Spain that there had been an understanding between the parties-that isto 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, sothat no fresh proceedings could be brought based upon it. This contentionwas based onthe fact that when, after the original proceedings had been started, the representa-tives of the Belgian interests concerned approached the representatives of theSpanish interests with a view to re-opening negotiations, they were met with a firmrefusal 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 theareas 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 provisionalmeasures purely exploratory activities by one State on what might prove to be another State's area ofshelf: Ie] Reports, 1976, p. II, para. 33; and in the Tunisia/Libya case the Court was influenced in itsdelimitation 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 anyother 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 suchan 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 bythese 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 isno evidence: indeed on the Spanish side the apparently very cautious nature of thecontacts 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 alitigation before it, and to affect their rights in that litigation, it can only takeaccount of the acts and attitudes of governments or of the authorized agents ofgovernments; 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 BelgianGovernment, not objected to by the Spanish Government, so that somedegree of agreement must have existed at the international level. The situ-ation thus resembled that asserted by the United Kingdom to exist in theAnglo-Iranian Oil Co. case; as Fitzmaurice explained, the United Kingdomargumentdid not so much allege that one and the same agreement ... was simultaneouslyboth a private contract and an international treaty, as that there were in effect twoagreements, one a private contract between the Iranian Government and the Com-pany, and the other a tacit agreement between Iran and the United Kingdom, theterms of which were that, in consideration of the proceedings before the LeagueCouncil, the first agreement would be observed.v"

    Such international agreement could of course have been constituted by themere fact of discontinuance coupled with lack of objection by the respon-dent; but the Court seems to have considered that, even at governmentallevel, there was some element of agreement even before the notice of dis-continuance was filed. Explaining that, as regards any extinctive effect ofdiscontinuance, it found the various exchanges 'wholly inconclusive', theCourt observed:I t seems that the Parties were deliberately avoiding a problem they were unwillingto come to grips with, lest by doing so they should shatter the foundation for theirinterchanges. 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 THE LAW AND PROCEDURE OF

    refusal would result from any official request that the Applicant Government, indiscontinuing the current proceedings, should definitely renounce, or undertakethat 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 thatright. The desire felt on the Spanish side not to negotiate whilst proceedings wereactually in progress before the Court, involving injurious charges against Spanishauthorities and nationals, was fully met by the discontinuance effected, andnothing 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 ofArticle 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 orrecording consent renders superfluous any enquiry into the steps by whichits precise terms were arrived at. In private law, a contract may, particu-larly in commercial matters, come into existence as the culmination of aseries of exchanges of offers and counter-offers, and its terms may have tobe 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 mayvery well have taken place in the course of negotiation, it is normal for theterms so agreed to be embodied in a formal treaty-instrument, and it is thisand this alone which will, save in exceptional cases, define the extent of theagreement. 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 inthe law of treaties.

    3 1 IC] Reports, 1964, p, 23 (emphasis added),32 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 thecase 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 themto 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 in1943, 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 theacceptance was valid and subsisting. The Governments of France, theUnited Kingdom and the United States, having agreed to refer to arbi-tration the question whether the monetary gold which was at stakebelonged to Albania or to Italy, made a further joint Statement (the Wash-ington Statement of 25 April 1951), the effect of which was described bythe Court as follows. The three Governments stated that they agreedthat, if the opinion of the Arbitrator should be that Albania had 'established a claimunder Part III of the Act' to the gold in question, 'they will deliver the gold to theUnited Kingdom in partial satisfaction of the judgment in the Corfu Channel caseunless within 90 days from the date of the communication of the Arbitrator'sopinion 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 thequestion whether it was proper that the gold should be delivered to the UnitedKingdom; or Italy made an application to the Court for the determination of thequestions whether by reason of any rights which she claimed to possess as a resultof the Albanian law of January 13th, 1945, or under the provisions of the ItalianPeace Treaty, the gold should be delivered to Italy rather than to Albania andwhether the claim of the United Kingdom or of Italy to receive the gold shouldhave priority, if this issue should arise. The three Governments accepted asrespondents the jurisdiction of the Court for the purpose of the determination ofsuch applications by Italy or by Albania or by both, and undertook to conform withany decisions of the Court. 34

    The case came before the Court because Italy took advantage of theopportunity 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 withregard to the gold, but, instead of presenting a Memorial on the merits within thetime-limit fixed for that purpose by the Court, she raised an issue as to the Court'sjurisdiction 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 offerand 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. 36

    However, after such acceptance, Italy challenged the jurisdiction of theCourt, on the grounds that the proceedings were in reality directed againstAlbania, 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. 26-7.36 Ibid.,p.28.

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  • THE LAW AND PROCEDURE OF14event achieved-was to prevent the three Governments from implementingtheir agreement to hand over the gold to the United Kingdom, because thecondition 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'sclaims."?

    The reaction of the United Kingdom-" was of course to suggest that as aresult 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 theUnited Kingdom expressly submitted,the United Kingdom is entitled by the Tripartite Washington Statement to receivea transfer of the gold in the same manner as if Italy, as well as Albania, had notapplied to the Court under the relevant provisions of the Statement. 39

    Specifically, again in terms of the United Kingdom submissions, the Courtwas asked to declare that

    (1) in view of Italy's objection on the ground of the alleged lack of competenceof the Court, her Application to the Court of May roth 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 notkept her side of the bargain. The agreement formed by Italy's acceptance ofthe offer contained in the Washington Statement was, at the time of theproceedings, 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 thatI taly was in breach of the agreement, and that the gold could be released tothe United Kingdom on an argument of adimpleti non est adimplendum. Itwas necessary to contend that there had been no agreement, because Italy'sapplication did not conform to the conditions of the Washington State-ment, or that, having been in effect withdrawn, it could be treated as neverhaving been made. The difficulty with the latter argument is that, if Italy'sapplication amounted to compliance with the conditions of the WashingtonStatement 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 diplomaticrelations between Albania and the United Kingdom made it possible for an all-round settlement ofclaims to be negotiated: see the Anglo-Albanian Memorandum of Understanding signed at Rome on 8May 1992, and d. Revue generale de droit international public, 1991 (Chronique des faits inter-nationaux), p. 440; Keesing's Record ofWorld 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 howeverdealt with it on the narrower ground that what Italy had done was not aprocedural discontinuance as contemplated by the Rules of Court.

    In ruling on the arguments of the United Kingdom, the Court in effecttook 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 anapplication for determination of the entitlement to the gold, then the threeGovernments would refrain from handing it over to the United Kingdom.The Washington Statement could however have been read as an offer tohave the question of entitlement to the gold determined by the Court ifItaly so required: on this basis, it could more convincingly be argued, asthe United Kingdom did, that the acceptance required of Italy was not themere filing of an application, but active co-operation in the case leading to ajudgment on the merits. In fact, the United Kingdom might have pre-sented the matter in terms which appeared, in a decision of the Courtnearly 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 mightbe 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 1951between the WHO and Egypt, the Court examined in some detail theexchanges between Egypt and the WHO concerning establishment of theWHO Regional Office in Alexandria, leading up to the 195 I Agreement ;43it 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; butit is striking that the Court was prepared, and found it appropriate, to gobehind the 1951 Agreement at all. Its key finding was that

    By the mutual understandings reached between Egypt and the Organizationfrom 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 Organizationwhich remains the basis of their legal relations today. 4S

    The case thus remains an example, at least in principle, of the possibilityof 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 theCourt in any event. The absence of Albania, an essential party, was a defect which by definition couldnot be cured by considerations ofjornm prorogatum on the basis of the attitude of the parties, includingItaly. On this basis, even a more substantive reading of the terms of the offer of the three Governmentsneed not have led to the conclusion that Italy's acceptance of that offer was invalid, or ineffective, orwithdrawn, inasmuch as all it was doing was bringing up a point which the Court would have had toconsider, 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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    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 Africathat the Mandate for South West Africa was not a 'treaty or convention' forpurposes 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 intoexistence as an 'international agreement having the character of a treaty orconvention'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 thePrincipal Allied and Associated Powers to confer the Mandate, and 'theconfirmation of its acceptance on 9 May 1919 by the Union of SouthAfrica"."? This exchange however preceded the drafting of the actual Man-date text; the Court, not unreasonably, declined to break down the totaltransaction 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'. 48

    (2) ConsiderationAnother element of the common law system of contract law which has

    made its appearance on the international scene in a judgment of the Court isthat of 'consideration'. 49 In the Fisheries Jun'sdiction cases, Iceland sug-gested that the Exchange of Notes of 1961 by which jurisdiction had beenconferred 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 theother hand, it could be considered as relevant to the compromissory clause on anhypothesis 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 ofthe agreement having been fulfilled, it no longer has a binding effect for Iccland.v'

    46 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 aspecthere 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, TheLaw 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 adeed 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 itenforceable as a contract ... consideration is either some detriment to the promisee (in that he maygive 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 futureextension of fisheries jurisdiction might be tested by recourse to the Courtwas the withdrawal by the United Kingdom of its objection to the Icelandictwelve-mile zone; and the 'failure' of that consideration would thus be thedevelopment of general international law whereby such a zone became agenerally recognized possibility. S2

    The relationship between the concept of 'failure of consideration' andthat of 'fundamental change of circumstances', endorsed by the ViennaConvention, will be examined in Chapter-V, section 4, below. The point tobe 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 essentialelement in the formation of international agreement embodied in a treaty .F'since failure of consideration would apparently not be a relevant idea unlessconsideration itself were such.

    This however would, it is suggested, be to read too much into theFisheries Jurisdiction decisions; these were equally consistent with the viewthat consideration is not an essential element in the formation of an inter-national agreement, but that if such agreement is truly synallagmatic, sothat each side's commitment is in fact supported by consideration, the sub-sequent failure of such consideration might be a ground for termination ofthe 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 rightsand obligations becomes one-sided, this may be a ground for termination.

    Such a reading is confirmed by the Court's explanations of the legal effectof unilateral acts in its judgments in the Nuclear Tests cases. Havingobserved thatIt is well recognized that declarations made by way of unilateral acts, concerninglegal or factual situations, may have the effect of creating legal obligations-"

    the Court added that when such a declaration is made publicly and withintent to be bound,In these circumstances, nothing in the nature of a quid pro quo nor any subsequentacceptance 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 unilateraldeclaration without any consideration moving from the State or Statesintended to be benefited, it would be absurd if the same effect could not beachieved by an instrument bilateral in form but intended to have the sameunilateral effect.

    52 The exact effect on the law of the sea of an increased recognition of encroachments on the high seasis not as easy to define as might appear: see the earlier article in this series, this Year Book, 60 (1989),pp. 84~2.

    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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    Halfway between these two forms of legal instrument, the treaty and theunilateral declaration, falls the Washington Statement examined in theMonetary Gold case, already discussed above. The statement was made bythree States jointly, and apparently bound them inter se by a treaty-lawobligation. With regard to Italy, the Statement constituted an offer, whichat the time of its being made was unsupported by any consideration. Theact of seising the Court, which the Court regarded as an acceptance of theoffer, could also perhaps be regarded as a form of consideration; its value tothe three Governments may have been questionable, but on the commonlaw definition of consideration there was sufficient 'detriment' to Italy in itsaction of commencing court proceedings.

    (3) Intention to create legal relationsA third well-established rule of the common law concerning contracts is

    thatan agreement, though supported by consideration, is not binding as a contract if itwas made without any intention of creating legal relations.v''

    International law analogies to this rule have already been dealt with in theprevious article in this series, 57 and will not be re-examined here.

    2. Forms of Conclusion ofTreaties(1) Are there legal requirements as to form?

    The formalities in diplomatic practice surrounding the conclusion of atreaty have an evident purpose: to establish conclusively that agreement hasbeen reached between the parties, and to provide an authentic record of theterms of that agreement. This normally implies, a contrario, that where anelement normally treated as essential is absent-e.g., if there is no singletext adopted by both parties, or if one party has not ratified a treaty whichrequires ratification-, then there is no treaty and no pactum giving rise toobligations.

    This does not however mean that a treaty has to have any predeterminedform. 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 Templecase, that

    in legal transactions, just as the deed without the intent is not enough, so equallythe will without the deed does not suffice to constitute a valid legal transaction.

    56 Treitel, The Law ofContract (8th edn., 1991), p. 149- This was the first defence raised by Wotanto the claim by Fasolt and Fafner (Das Rheingold, Scene 2--see the quotation at the head of thisarticle), the second (on the advice of Loge) being that only an obligation de moyens and not an obligationde 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 arecases where, for the protection of the interested parties, or for reasons of publicpolicy, or on other grounds, the law prescribes as mandatory certain formalitieswhich, hence, become essential for the validity of certain transactions, such as forinstance testamentary dispositions; and another example, amongst many possibleones, 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 onthe intentions of the parties, the law prescribes no particular form, parties are freeto 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 tointernational treaties. The International Law Commission recognized thatthere are admittedly some important differences of a juridical character betweencertain classes or categories of international agreements;

    but emphasized that these differences 'spring exclusively from the contentof the agreement, whatever its form'.s9

    The problems in pinning down the precise location and extent of thetreaty constituted by the Mandate for South West Africa have already beendiscussed ;60 they too illustrate the flexibility as to matters of form whichcharacterizes international agreement.

    It is worth recalling finally that it was in connection with action taken onthe basis of a not-yet-ratified treaty that the Permanent Court made itsfamous observation that

    The Court, whose jurisdiction is international, is not bound to attach to mattersof form the same degree of importance which they might possess in municipallaw. 6 t

    (2) Ancient treatiesThe 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 existencein the manner and with the formalities customary at the time and placewhen it was made.I"

    India objects on various grounds that what is alleged to be the Treaty of 177958 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 thepresent Court in Nicaragua v. United States Ourisdiction), ICJ Reports, 1984, pp. 428-

  • 20 THE LAW AND PROCEDURE OF

    was not validly entered into and never became in law a treaty binding upon theMarathas. The Court's attention has, in this connection, been drawn inter alia tothe divergence between the different texts of the Treaty placed before the Courtand to the absence of any text accepted as authentic by both parties and attested bythem or by their duly authorized representatives. The Court does not consider itnecessary to deal with these and other objections raised by India to the form of theTreaty and the procedure by means of which agreement upon its terms wasreached. It is sufficient to state that the validity of a treaty concluded as long ago asthe last quarter of the eighteenth century, in the conditions then prevailing in theIndian Peninsula, should not be judged upon the basis of practices and procedureswhich have since developed only gradually. 63

    Nor is it necessary to prove what the contemporary forms and practiceswere 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 uponthem, and gave effect to its provisions. The Treaty is frequently referred to as suchin subsequent formal Maratha documents, including the two sanads of 1783 and1785, which purport to have been issued in pursuance of the Treaty. The Marathasdid not at any time cast any doubt upon the validity or binding character of theTreaty.64

    A similar problem arose in respect of a treaty between Spain and Mor-occo, relied on in the Western Sahara case. Morocco produced an Arabictext, and Spain a text in Spanish, which proved, on an important issue, tohave substantially different meanings; it was contended by each side thatthe text which it had produced was authentic and there was no evidence tojustify the Court's attributing that character to the one text rather than tothe other. The Court was able to escape from the dilemmabecause a number of later treaties, closer to the time of the colonization of WesternSahara and thus more pertinent in the present connection, contained clauses of asimilar character . . .65which enabled the Court to arrive at a conclusion on the underlying issue towhich 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, itwould be difficult to consider such international recognition as established on thesole basis of a Moroccan text diverging materially from an authentic text of thesame treaty written in the language of the other State.P"

    At first sight, this appears to mean that the existence of the divergentSpanish 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 defectsin 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 termsagreed, the only conclusion had to be that the parties, working in differentlanguages, were not ad idem, so that there was pro tanto no treaty. Thiswould hardly be consistent with the decision in the Right ofPassage case.

    However, it has to be borne in mind that, as observed in the previousarticle in this series,'? the question was not the precise extent and nature ofthe obligations assumed by the parties in the disputed clause of the treaty.Morocco was asserting that the text (at least the Arabic text) showed theextent 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 takedecisions 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 moreprobable 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 thetwo parties were working on inconsistent texts, the relevant article of thetreaty was not necessarily invalidated, but only the Spanish text could beregarded as opposable to Spain to support a claim of Spanish recognition ofsomething outside the treaty itself.

    (3) Consent to be bound established by deposit ofappropriate instrumentThe decision of the Court at the preliminary objections stage of the Right

    ofPassage case, concerning the date from which a declaration of acceptanceof jurisdiction under the Optional Clause took effect, was referred to by theInternational Law Commission as relevant to the analogous situation of thedeposit 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 filedby Portugal instituting proceedings against India, before India was awarethat Portugal had deposited an Optional Clause declaration: the 'lightning-strike' technique. 7 India contended that such a declaration did not becomeeffective 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: theconsensual bond, which is the basis of the Optional Clause, comes into beingbetween 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 ofInternational 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 NewYork, taking into account the different time-zones!

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  • 22 THE LAW AND PROCEDURE OF

    The legal effect of a Declaration does not depend upon subsequent action orinaction of the Secretary-General.7 2

    Commenting on this in the context of the deposit of ratification of atreaty, the ILC observed that

    If this case indicates the possibility that difficult problems may arise under therule 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 andthe merits stage of the case concerning the Temple of Preah Vihear, theCourt was faced with a plea of error, in relation to a treaty and in relation toan acceptance of jurisdiction under the Optional Clause-a unilateral actbearing 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 theOptional Clause declaration that the Court made the important dictum thatthe principal juridical relevance of error, where it exists, is that it may affect thereality of the consent supposed to have been given, 74which is evidently of equal application in the context of the conclusion oftreaties.?"

    The jurisdictional question was the validity of a declaration made byThailand in 1950 purporting to renew a declaration made in 1940 acceptingjurisdiction of the Permanent Court, which had ceased to be effective withthe disappearance of the Permanent Court and was not, on the authority ofthe Court's ruling in the Aerial Incident (Israel v. Bulgaria) case, revivedby 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 thestatus of her 1940 Declaration, and for that reason she used in her Declaration of1950 language which the decision of the Court in the Israel v. Bulgaria caseshowed to be inadequate to achieve the purpose for which that Declaration wasmade.Z?

    The Court's view was however that Thailand fully consented and intendedin 1950 to accept the jurisdiction of the present Court, and merely used aninappropriate form of words. For this reason, the Court stated that 'it doesnot consider that the issue is really one of error'; 77 and that 'There was in

    7~ 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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    any case a real consent in 1950, whether or not it was embodied in a legallyeffective instrument'. 78

    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 toThailand, that it was using the wrong form to achieve its purpose, it wouldnot have abandoned its purpose but would have employed the correct form.Relevance is apparently to be defined by this criterion: if the error had beenpointed out, would the transaction have proceeded on the substantive termsin which it did?

    This may be tested by consideration of the facts of the merits phase of thesame case. A treaty of 1904 between France and Siam {Thailand}"? hadprovided for the frontier between Thailand and Cambodia in a particulararea to follow a particular watershed, and for the frontier to be delimited bya Mixed Commission. A map produced following the work of the MixedCommission 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 theyaccepted the map'. 80 The Court's interpretation of the relationship betweenthe conclusion of the treaty and the acceptance of the map was that 'theacceptance of the . . . map by the Parties caused the map to enter the treatysettlement and to become an integral part of it' .81

    On Thailand's claim of error, which can thus be assimilated to error inthe 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 anelement vitiating consent if the party advancing it contributed by its own conductto the error, or could have avoided it, or if the circumstances were such as to putthat party on notice of a possible error. The Court considers that the character andqualifications of the persons who saw the Annex I map on the Siamese [Thai] sidewould alone make it difficult for Thailand to plead error in law. These personsincluded the members of the very Commission of Delimitation within whose com-petence this sector of the frontier had lain. 8 2

    This terminology was subsequently taken over in the Vienna Conventionon the Law of Treaties (Article 48, paragraph 22), save that the words 'orcould 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 carriedout by two French officers, so that all the Thai members of the Commissionof Delimitation did was to fail to notice the incorrect position of the line.

    78 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 partin the survey, that the line was wrong, it would hardly be a 'contribution' tothe 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 ofscrutinizing it, could have failed to see what the map was purporting to do inrespect of that region. If, as Thailand has argued, the geographical configuration ofthe place is such as to make it obvious to anyone who has been there that thewatershed must lie along the line of the escarpment (a fact which, if true, musthave been no less evident in 1908), then the map made it quite plain that the AnnexI 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 themap could be under any misapprehension about that.

    N ext, 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 arough plan of the building and its stairways.

    It would thus seem that, to anyone who considered that the line of the watershedat Preah Vihear ought to follow the line of the escarpment, or whose duty it was toscrutinize the map, there was everything in .the Annex I map to put him uponenquiry.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. Theyaccepted it without any independent investigation, and cannot therefore now pleadany error vitiating the reality of their consent. The Court concludes therefore thatthe 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 wasthere observed that Thailand's silence in face of the erroneous map was sus-ceptible of three different interpretations, and that the interpretationselected 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 thetreaty frontier. This however was an attitude attributed to Thailand on thebasis of its silence, not an approach which Thailand could be proved as amatter of fact to have adopted. For this reason, as observed in the previousarticle, it is inappropriate and inconsistent at the same time to apply therule 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 bethus confirmatory of the appropriateness of that test. If it had been pointedout 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 itto 'enter the treaty settlement'. The Court's finding was in effect that thisnon-correspondence was however a matter of indifference to Thailand-orrather that Thailand behaved in such a way as to convey the impression thatthat was the case.

    (b) Error for which the complainant State was itself to blame. Whetheror not it was appropriately applied in the Temple case, it is clear that thereis, as the Court said,an established rule of law that the plea of error cannot be allowed as an elementvitiating consent if the party advancing it contributed by its own conduct to theerror, or could have avoided it, or if the circumstances were such as to put thatparty 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'? Thelatter, it seems: the point on which the Court based its decision was that themap '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 wherethe 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 aparty at all: it was the error of the Commission responsible for the map. Ifa party accepts a map which shows, and shows sufficiently clearly for theparty to be at fault if it fails to notice it, a line other than the one intended tobe agreed, can it rely on error at all? It is rather as if the text of a treatywhen drawn up failed in an important respect to correspond to the termsagreed ad referendum, to which the treaty was intended to give effect. Toseek to repudiate the treaty in such circumstances is more akin to a plea ofnon est factumt" than one of mistake; and it does not appear appropriate tointroduce this common law conce~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 decisionin the Tunisia/Libya case: Application for Revision and Interpretation ofthe Judgment of24 February 1982 in the Case concerning the ContinentalShelf (Tunisia/Libyan Arab Jamahinya) (Tunisia v. Libyan Arab Jama-

    86 ICJ Reports, 1962, p. 26.87 On this see Treitel, The Law ofContract (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 withunder Article 74, and the latter under Article 48; if there is any dispute whether the error is solely one inthe 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 failedto read the text carefully enough before signing.

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    hiriya).89 Tunisia's application for revision was based on Article 61 of theStatute of the Court, paragraph I of which provides that

    An application for revision of a judgment may be made only when it is basedupon the discovery of some fact of such a nature as to be a decisive factor, whichfact was, when the judgment was given, unknown to the Court and also to the partyclaiming revision, always provided that such ignorance was not due to negligence.

    The fact in question, according to Tunisia, was a text which establishedthe co-ordinates determining the course of the north-western boundary of aLibyan petroleum concession; Tunisia contended that the Court's earlierjudgment had been based on an incorrect version of this boundary, and thatthe 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 ofthe co-ordinates either from the Libyan pleadings or from other sources.After ascertaining that the exact co-ordinates were not determinable on thebasis of the pleadings, the Court observed thatwhile the co-ordinates of Concession No. 137 were never published, they were,according to Libya 'readily obtainable in Tripoli'. It was also possible, according toLibya, to obtain the information from the Libyan National Oil Corporation. It hasbeen 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 beenpossible for it to do the same-or indeed itself to apply to the firm of consultants inquestion-nor proved that if it had made such approaches, they would have beenunsuccessful. 9

    In response to a suggestion by Tunisia that it 'cannot be held negligent inany way' because it had repeatedly asked the Libyan Government for thedocument, the Court added:

    While it was no doubt correct as a matter of diplomatic practice for Tunisia toinvite the Libyan Government to supply the relevant information, there was noreason 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 issuggested that the Court's approach would have been the same had theclaim before it been directed to repudiation of a treaty on grounds of error.This is indeed virtually what the Court stated in a further paragraphdevoted to the matter.

    89 ICj Reports, 1985, p. 192. This monumental case title, recalling some of the more inspired effortsof the draftsmen of English statutory instruments, prompts the question: what title would have beengiven 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 acontinental shelf delimitation, following the grant by each side of neighbouring orconflicting concessions, a State should first try to learn the exact co-ordinates of theother party's concession. Furthermore, it is to be expected that a State would notassert that such concession extended to its own area of continental shelf withoutknowing, or making efforts to discover, the exact limits of the concession.?"

    (c) Error of fact and error of law. In its judgment on the preliminaryobjections in the Temple case, the Court, after describing the error whichThailand claimed to have made and which, it was argued, invalidated theOptional Clause declaration made under its influence, commented thatAny error of this kind would evidently have been an error of law, . . . 93

    The Court did not explain what, if any, significance this observation mighthave had for its argument, merely continuingbut in any event the Court does not consider that the issue in the present case isreally one of error.

    It seems that this remark may he attributed to a Member of the Courtfamiliar 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 thesituation 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 relevantquestion 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 oflaw' 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 suchprinciple, and legal writers are divided.?? It is only if the exception can beregarded as necessarily or appropriately implied by the main rule, the rulerecognizing that error may be a ground for repudiation of treaties, that itwould 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 ofCon-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, LawofContract (8th edn., 1991), pp. 277-8.

    96 It may not be superfluous to observe that what is here contemplated is a mistake by one or bothparties as to the provisions or effect of international law : mistake as to a question of municipal law willpresumably 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 notthemselves give any unambiguous indication of the intended rule. Article48 of the Convention requires that the error invoked should relateto a fact or situation which was assumed by [the] State to exist at the time when thetreaty was concluded;

    but a 'situation' might include a situation in law as well as one of fact. 98However, it its Commentary on the Draft Articles presented to the ViennaConference, the International Law Commission explained the intendedmeaning of its text as follows:The Commission appreciated that an error in a treaty may sometimes involvemixed questions of fact and of law and that the line between an error of fact and oflaw may not always be an easy one to draw. Nevertheless, it considered that tointroduce into the article a provision appearing to admit an error of law as itselfa ground for invalidating consent would dangerously weaken the stability oftreaties?".

    De lege ferenda, at least, therefore, the Convention does recognize thedistinction drawn by English law between mistakes of fact and mistakes oflaw. The observation quoted from the Temple case cannot be given muchweight in assessing what view the Court would take. It is also worthremarking 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 theAerial 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 ofinvalidity of treaty, this was because so many questions of law remain con-troversial as a result of the proliferation of separate and dissenting opinionsappended to decisions of the Court pOO

    (2) Duress: the Fisheries Jurisdiction casesIn the two Fisheries Jun'sdiction cases, the basis of jurisdiction relied on

    was, in each case, an Exchange of Notes concluded in 1961 between Icelandand each of the other two States. In communications to the Court Iceland,which was not appearing in the proceedings, made statements which weretaken by the two applicant States as 'a veiled charge of duress purportedlyrendering the Exchange of Notes void of ab initio"?' or as intimating thatIceland 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 tothe legal consequences expected to flow from the treaty, (Into the latter category would fall, accordingto Anzilotti, the mistake of Norway in the Ihlen Declaration as to 'the legitimate consequences followingupon an extension of sovereignty' by Denmark, a mistake which he considered not to be 'of an excusablecharacter': see PCI], Series AlB, No, 53, p. 92.) The alleged error of Thailand as to its acceptance ofjurisdiction 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 unsupportedby evidence.

    There can be little doubt, as is implied in the Charter of the United Nations andrecognized in Article 52 of the Vienna Convention on the Law of Treaties, thatunder contemporary international law an agreement concluded under the threat oruse of force is void. It is equally clear that a court cannot consider an accusation ofthis serious nature on the basis of a vague general charge unfortified by evidence inits support. The history of the negotiations which led up to the 1961 Exchange ofNotes 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 facthas been brought to the attention of the Court from any quarter suggesting theslightest doubt on this matter. 13

    The first remark which may be made in this respect is that the Courtclearly departs from thetraditional view under which treaties procured through the coercion of a State bythe 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 belittle doubt ... " and by the allusions to the Charter and the Vienna Con-vention. lOS Secondly, it may be noted that the Court s