55. Article lS(b) of the Vienna Convention is seen in sorne quartcrs as a legal taurology.
Indeed, who would clare contest the validity of the obligation not to defeat the purpose and abject of a treaty, or its character as a rule of international customaty law, once con-sem to be bound by said treaty has been expressed. Sorne aurhors therefore considered it poimless to include such a provision in the Vienna Convention. Their opinion must be seen in the light of the legal problems relating to the question of definitive acceptance of a treaty, but it is in many respects true that it is the interpretation of Article lS(a) of the Convention that poses problems. Both the value of the ensuing obligation and the sanc-tions for violasanc-tions of Article 18(a) stumble at any attempt at legal systematization.
On the reality of the obligation
56. Article 18(a) of the Vi enna Convention is not a lawless tending to deprive the Article of meaning. Even less is it an area of counter-law chat rails or 'distances itself from corn-mon internationallaw'129 on treaties. It expresses a genuine concern: that the principle of good faith in international relations be weil established. The obligation set forth in Article 18(a) cannot be lègally isolated from the principle of good faith. In other words, recogni-tion of good faith as a general principle of law naturally entails recognirecogni-tion of the rules required for its effective and efficient implementation. Article 18(a) is one of the means ofimplementing the principle of good faith in treaty-based relations. The introduction of that principle into the Vienna Convention makes it a genuine legal obligation as opposed ta a mere moral obligation.130
57. Previously under international law, treatics were binding on the parties as soon as they were signed, because ratification was a duty and not an option.131 The following is an oft-cited example of the former doctrine relating to the effect of signature: in 1903, Colombia refused to ratifjr the Hay-Herran Treaty granting the United States the right ta build a canal through Panama, which was then part of Colombia. The US Secretary of State Hay wrote as follows to General Reyes:
The two Governments, in agreeing to the trcaty through their du! y authorized representatives, bind themsclvcs, pending irs ratification, not only not to oppose irs consummation, but also to do noth-ing in contravention of its terms.132
n n'est pas extraordinaire que plus d'une année S1écoule entre la clôture des négociations dont est issu un traité et son entrée en vigueur. Entre-temps, l'Etat qui a ratifié, accepté ou approuvé se trouve, du fait de l'alinéa b) de l'Article 18, sous le coup d'une obligation dont il ne connaît ni l'étendue réelle ni la durée. li pâtit de son zèle. Q. Nisot, supran 10, p 502)
'" Ibid, p 503.
130 As was affirmed by sorne, such as Harvard Research in International Lawwhich in its commentary on the dra.ft convention on treaties held rhat the obligation of a signatory stace cannat be considercd 'a legal duty, e.g., a duty under înternationallaw ... but an obligation 'of good faith mcrcly. for which rhere is no legal sanction'.
SeeA]IL, vol. 29(4) Suppl., pp 781 and 787.
'" A1. R. Kolb puts it: 'la ratification n'est qu'un acte subordonné ayant effet rétroactif', supra n 28, p 185.
'" Papers on the Foreign Relations of the United Siates, vol. 44, 1903, p 299 as quotcd by R. Kolb, supra n 28, p 185. The author quo tes, with the same view, the report of the Attorney .. Gcneral and of the Queen'sAdvocate
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398 Part II Conclusion and entry into force of treaties
58. This concept was based on two dominant theories: on the one hand, the theory of rhe priva te law mandate thar postulated the obligation to ratify; 133 on the other hand, the theory of the retroactive effect of ratification by virtue of which signature was an ordinary source of obligations in the sense thar 'the trearywas bindingas soon as it had been signed because of a kind of resolutive condition thar was tantamount ro ratification' .134
59. Article 18 of rhe Vienna Convention clearly distinguishes between signature and ratification. De jure and de focto, signature is in dependent and gives rise ro one or more specifie obligations.
60. Signing a treaty gives rise to a legal obligation to act under the terms of Article 18 of the Vienna Conve-Qtiqp. At the leve! of international relations, iris truc, the scope of the obligation is harder.
to
:define. Under the terms of Article 18, the 'State is obliged to refrain'. As Jean-Pierre Co'r purs it, 'governments are not asked to raite positive action'.135 61. This obligation ro refrain had been highlighred in the Iloilo case. Between the rime the treaty by which Spain ceded the Philippines to the United States was signed on 10 December 1898 and its ratification, Fiüpino insurgents committed numerous acts harmful to British interests. US troops occupied Iloilo weil after the Spanish troops had been evacuated, and were unable to stop the insurgents from burning the town to the ground. The joint Anglo-Arnerican commission told Great Britain, which accused the US government of culpable negligence, that 'there was no dury upon the United States under the terms of the Protocol, or of the then unratified treaty; or otherwise, to assume control at Iloilo' .13662. This is the theory reflected in Article 18 of the Vienna Convention, which only provides for an obligation to refrain. This is regrettable in that good faith should sorne-times prompt the States to act positively ro uphold the abject and purpose of the treaty concerned.
63. There are three major questions relating to the limits and scope of the obligation to refrain. First, is the obligation to refrain antinomie to the treaty's 'anticipated or provi-sional implementation'? It would seem that by virtue of the principle of free will, the parties can decide to apply a convention before its ratification, under terms agreed by them.137 International practice contains examples of si tua ti ons· in whicli a treaty that has been signed but has not yet entered into force is provisionally implemented in orcier to uphold its abject and purpose. The United States acted thus in respect of UN CLOS.
Accordlng to the Foreign Affairs Division:
of the United Kingdom on 15 May 1857, drafted with regard to a rreaty imposing a consrirution on rhe Bay Islands which had not yet been rarified by Honduras. According to R. Kolb:
les auteurs s'inspirent d'une doctrine d'effet rétroactif de la ratification: <That Altho' the Convention bctwecn Her Majesty and the Républic of Honduras has not yet been ratified, yer the ratifications, when exchanged, will relate bade to, and con6rm the Convention ... No act can in the meantime be properly done by Her Majesty, whilsc the ratification of the Treaty is under consideration, which may at ali affect any of the stipulations of the treaty ... (supra n 28, p 185)
m Sec Harvard Draft, pp 770 ff; sec also R. Kolb, supra n 28, p 185.
134 See J. M. Jones, supra n 12, pp 66 ff; reference may also be made to the plea.ding of E de Visscher in Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras o Nicaragua), supra n 28, pp !61-2. bbb
135 J.-P. Cot, supra n 15, p 155.
136 A. D. McNair, supra n 15, p 202.
137 On this issue, consult the commentary on Arr. ·25 of the Vienna Convention in this work. See also:
P Picone, L 'applicazione in via provvisoria degli accordi internazionali (Naples: E. Jovene, 1973); D. Vignes, 'Une notion ambiguë: La mise en application provisoire dt:s traités', AFDJ, 1972, pp 181 ff.
BOISSON DE CHAZOURNESfLA ROSNMBENGUE
399
Three years of preparatory meetings were required before the Conference could convene, and it may be necessary to hold more than one substantive negotiating session beforc final agreement is reached. Beyond that rime, the process of national ratifications cotùd delay implementation of the treaty even furrhcr. In the meantime, the need increases for an internationally accepred sysrem for orderly use of the oceans ... [there is a] cali for the establishment of a new international order in the oceans at the carlicst possible date. Accordingly, the United States has proposed thar the treaty Articles on the deep seabeds and fisheries be applied provisionally withour waiting until comple-tion of the nacomple-tional ratificacomple-tion process for the ocean treaty as a whole. If the Law of the Sca Conference produces a trcary that accommodares the imerests involved, provisional application could serve co seule currem and incipient disputes among nations, enable international law to kcep up with deep sea mining technology, and alleviate the plighr of fisherrnen.138
US practice reflects other examples of anticipated application, such as the GATT or the agreement rclating to the United Nations conference on whcat.139
64. These examples, which are drawn from international practice, show that Article 1 8 of the Vi enna Convention could develop a pure! y preventive function tending to enable the States signatory to an international treary, either unilaterally or as a group, to implement certain fundamental provisions thereof pending its entry into force, with a view to upholding its abject and purpose. Anticipated or provisional implementation of those provisions makes it impossible to defeat the object and purpose of the treaty in question and obliges the State thar does not wish to apply it provisionally clearly to dem-onstrate its intent not to be bound by the treaty. Far from being contradictory, Articles 18 and 25 of the Vienna Convention-the latter deals with provisional application-are in fact complementary.140
65. The second question concerns the obligation to refrain. Is thar obligation compat-ible with the obligation to take positive measures in faveur of the treaty concerned~
According to R. Kolb, 'la bonne foi n'interdit que la mise en échec de la substance d'un traité. Elle ne peut commander une action alors qu'on ne sait pas si le traité entrera jamais en vigueur'. This point of view resembles the old jurisprudence establishing the 'absten-tionist' nature of the obligations set forth in Article 18 of the Vienna Convention. The States are thus only bound not to do anything, not to take any action. This is clear from the case of the German Reparations, in whicb the arbitrator approved the German posi-tion on the disposa! of certain assets:
138 ILM, 1974, p 455.
139 Ibid, pp 457-60.
140 We do not share the opinion of the Deputy Legal Counsd of the US Stace Deparnnent, Mark B.
Fddman, who in response to the question of a senaror lnterrogating hlm on the links between provisional application and the obligation of a Stace not ro take action contrary to the abject and purposc of a rreaty before the ratification, considert:d thar there were no Hnks between the two:
There is no direct rdadonship betw'een provisional appllcacion and the obligation of rreaty parmcrs nor to cake actions prior to ratification chat would defeat the abject and purpose of the treaty. Provisional application means thar treaty rerrns are applied temporarily pending final r::tcification. The obligation not to defeat the abject and purpose of the treaty prior to ratification could, in cheory, necessitate pre-ratüication application of provisions, if any, whcrc non-application from the date of signature would dcfcat the abject and purpose of the treaty. Such provisions are rare. ln the majoriry of cases the obligation not to defeat the abject and purposes of the trcaty mcans a dury to refrain from taking steps that would render .impossible future application of the treaty when ratified. Bath provisional application of rreaties and the obligation not co defeat the abject and purposc of trcaties pr.ior to ratification are recognized in customary international law; in the Vi enna Convention on the Law ofTreaties. (AJIL, 1980, p 933)
BOISSON DE CHAZOURNESILA ROSNMBENGUE
400 Part II Conclusion and éntry into force of treaties
The German government recognises chat it would be contrary ta good faith if after the signature, it had taken any measures ta enforce German righrs and interesrs in the hand of non-Germans. But it"contests that it was obliged bcfore the entry into force of the TreaLy ... to prevcm and and seize the rights and interesrs in question. 141
Diplomatie practice followcd the same reasoning, as illustrated in this statement by Ambassador Richardson of the United States:
International Law imposes no obligation upon a signatory to a trcary ta comply with its terms prior ra entry inra force with respect ta chat signatory, other chan the obligation in good faith ta refrain from acts which would defeat the abject and purpose of the treary.'"
66. While the p;i~'cibleis thar, in sorne cases in international law, under Article 18 signature essentially gives ·rise ta an obligation ta refrain, in others ir may generate an obligation to adopt positive measures in favour of the treaty concerned, if for no other reason than ta guarantee the status quo in respect of the conditions that prevailed at the rime the rreaty was negotiated.143 The case law and diplomatie doctrine and practice cited supra in this respect appear out of sync with the developments and new challenges con-fronting international law, in particular as concerns the requirement of anticipation.
International environmentallaw provides us with another example because in this field the challenge is irreversibility. Imagine, for example, a treaty thar protects threatened spe-cies and combats trade in them, such as the Convention on International Trade in Endangered Species ofWild Fauna and Flora (CITE$).144 Would a Stace chat has signed such a treaty be justified, in the name of the obligation t0 refrain, in allowing the contin-ued capture, hunting, and trade of threatened species on its national territory? In our view, no, because, by so refraining, the State signatory thar has not yet manifested its intent not to be bound by the treaty de facto defeats the object and purpose thereof, which is to safeguard threatened species. If the State allows such practices ta continue unchecked un til the treaty is ratified, certain species may disappear and could never. be restored or 'resuscitated' by the treaty's future enrry inro force. The purposc and object of the treaty would rhus have been basically defeated in the name of the 'right ta refrain'.
The phenomenon of irreversibility requires the State signing an international treaty ro anticipate, not by applying the treaty provisionally-although thar can be a solution-but rather by implementing it as such under the terms of Article 18. Refraining can requirc a positive action, ie the adoption of measurcs aimed at ensuring the treaty's
141 Unofficial translation by the editor. Original text:
Le Gouvernement allemand reconnaît que cc serait contraire à la bonne foi si, après la signature, H avait pris des mesures quelconques pour faire passer les droics et intér~ts allemands en mains non allemandes. Mais il c~nteste qu'il fût obligé de l'empêcher ct de saisir, avant l'entrée en vigueur du Traité .. .les droits et intérêts en question. (RL1A, vol. !, p 522)
"' M. Nash Leich, supra n 55, p 692.
143 M. Lachs had sorne concerns along similar lin es:
An examplc of the kind of question that would need to be considered was rhe situation in whkh ren States signed a disarmamcm treaty in 1965 and cntered into an obligation to reduce their armies by one third, the rreaty to emer into force on 1 January 1966. Meanwhile one of rhe parties increased its army during the remaining months of 1965. Was ir cnough to say thar the Stace had to refrain from any action calculated to frustrate the treaty? Was not ~e position thar, if there was no specifie provision on the subject, signarory States were under an obligation to m."llntain the status quo, so as not to invalidate the basic presumption of the agree-ment? (YILC, 1965, vol. !, ?89th session, p 97)
144 See the text of the Convention at: <htrp://www.cites.org/eng/d.isc/texc.shtmh.
BOISSON DE CHAZOURNESILA ROSNMBENGUE
fundamenta! abject and purpose are not defeated, without the Staœ having to apply the obligations set out in the treaty ta the letter.
67. Clearly, Article 18 could irnply, bath de lege lata and de lege ftrenda, thar signatory States are bound to take positive steps in favour of the treaty concerned. This orientation could be derived from the abject and purpôse of the treaty on signature.
68. The third question concerns whether the obligation to refrain goes hand in hand with the obligation to submit the signed instrument ta the authorities with constitutional competence to ratifY ir. 145 In this respect, according ta the theoty of Oppenheim and Lauœrpacht, the obligation set forth in Article 18 obliges the Stare signatoty at !east to submit the agreement to the competent national authorities for ratification. 146 The ILO Constitution prcdares the Vienna Convention on the Law on Treaties, but it neverrheless constitutes an interesting example of this, in thar it provides a legal means of marerializ-ing the obligation for the State signatory not to defeat the abject and purpose of the treary. According ta the lLO Constitution, as we have se en, the mcmber States undertake thar they will, within a specified peri ad, bring the conventions adopted by the lLO before the authorities within whose competence the matter lies, for the enactrnent oflegislation or other action. 147 The Article of the ILO Constitution mentioned supra is clearly based on the principle of good faith, in thar each mcmber government is bound to submit the instrument in question to the competent domestic bodies for ratification. In adclition, a deadline is set for informing the ILO about the ourcome of chat internai consultation. No member State could defeat the abject and purpose of the international labour convention concerned unless it has manifesred irs intent nor ta be bound. The scope of the obligation is in fact broader in the ILO Constitution than in Article 18.
69. As soon as the ILO adopts a convention, al! the member States, whether they voted in faveur or not, are bound to submit ir to the competent domestic authorities. The ILO Constitution and Article 18 of the Vienna Convention interact in the relationship berween the obligation not to defeat the purpose or abject of an international labour convention (as provides for Art. 18) and the obligation ro manifest the intention to ratifY or not to ratif}r said convention at the end of given period (as set out ·in the lLO Constitution). The legal vacuum created by Article 18 of the Vienna Convention on how to express intent not to become a party to the treary and on the period during which such intent should be expressed for the purposes of legal transparency is cl earl y filled by the ILO Constitution. However, the lLO Constitution reveals another lirnit to Article 18(a) of the Vienna Convention: the fa ct thar its scope of application is limited to the signatory
145 In the draft rcgarding the law oftrea.ties chat was submitted to the ILC, Sir Hcrsch Lauterpacht addcd to the obligation not co deprive a rreaty ofits abject and purposc the obligation co submit the signed instruments
145 In the draft rcgarding the law oftrea.ties chat was submitted to the ILC, Sir Hcrsch Lauterpacht addcd to the obligation not co deprive a rreaty ofits abject and purposc the obligation co submit the signed instruments