CONVENTION ON SUCCESSION OF STATES
IN RESPECT OF TREATIES
Vienna, 23 August 1978
The States Parties to the present Convention,
Considering the profound transformation of the
international community brought about by the decolonization process,
Considering also that other factors may lead to cases of
succession of States in the future,
Convinced, in these circumstances, of the need for the
codification and progressive development of the rules relating to succession of States in
respect of treaties as a means for ensuring greater juridical security in international
relations,
Noting that the principles of free consent, good faith and
pacta sunt servanda are universally recognized,
Emphasizing that the consistent observance of general
multilateral treaties which deal with the codification and progressive development of
international law and those the object and purpose of which are of interest to the
international community as a whole is of special importance for the strengthening of peace
and international co-operation,
Having in mind the principles of international law
embodied in the Charter of the United Nations, such as the principles of the equal rights
and self-determination of peoples, of the sovereign equality and independence of all
States, of non-interference in the domestic affairs of States, of the prohibition of the
threat or use of force, and of universal respect for, and observance of, human rights and
fundamental freedoms for all,
Recalling that respect for the territorial integrity and
political independence of any State is required by the Charter of the United Nations,
Bearing in mind the provisions of the Vienna Convention on the Law of Treaties of 1969,
Bearing also in mind article 73 of that Convention,
Affirming that questions of the law of treaties other than
those that may arise from a succession of States are governed by the relevant rules of
international law, including those rules of customary international law which are embodied
in the Vienna Convention on the Law of Treaties of 1969,
Affirming that the rules of customary international law
will continue to govern questions not regulated by the provisions of the present
Convention,
Have agreed as follows:
PART I
GENERAL PROVISIONS
Article 1
Scope of the present Convention
The present Convention applies to the effects of a
succession of States in respect of treaties between States.
Article 2
Use of terms
1. For the purposes of the present Convention: (a)
"treaty" means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument or in two
or more related instruments and whatever its particular designation; (b) "succession
of States" means the replacement of one State by another in the responsibility for
the international relations of territory; (c) "predecessor State" means the
State which has been replaced by another State on the occurrence of a succession of
States; (d) "successor State" means the State which has replaced another State
on the occurrence of a succession of States; (e) "date of the succession of
States" means the date upon which the successor State replaced the predecessor State
in the responsibility for the international relations of the territory to which the
succession of States relates; (f) "newly independent State" means a successor
State the territory of which immediately before the date of the succession of States was a
dependent territory for the international relations of which the predecessor State was
responsible; (g) "notification of succession" means in relation to a
multilateral treaty any notification, however phrased or named, made by a successor State
expressing its consent to be considered as bound by the treaty; (h) "full
powers" means in relation to a notification of succession or any other notification
under the present Convention a document emanating from the competent authority of a State
designating a person or persons to represent the State for communicating the notification
of succession or, as the case may be, the notification; (i) "ratification",
"acceptance" and "approval" mean in each case the international act so
named whereby a State establishes on the international plane its consent to be bound by a
treaty; (j) "reservation" means a unilateral statement, however phrased or
named, made by a State when signing, ratifying, accepting, approving or acceding to a
treaty or when making a notification of succession to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the treaty in their
application to that State; (k) "contracting State" means a State which has
consented to be bound by the treaty, whether or not the treaty has entered into force; (l)
"party" means a State which has consented to be bound by the treaty and for
which the treaty is in force; (m) "other State party" means in relation to a
successor State any party, other than the predecessor State, to a treaty in force at the
date of a succession of States in respect of the territory to which that succession of
States relates; (n) "international organization" means an intergovernmental
organization.
2. The provisions of paragraph 1 regarding the use of
terms in the present Convention are without prejudice to the use of those terms or to the
meanings which may be given to them in the internal law of any State.
Article 3
Cases not within the scope of the present Convention
The fact that the present Convention does not apply to the
effects of a succession of States in respect of international agreements concluded between
States and other subjects of international law or in respect of international agreements
not in written form shall not affect: (a) the application to such cases of any of the
rules set forth in the present Convention to which they are subject under international
law independently of the Convention; (b) the application as between States of the present
Convention to the effects of a succession of States in respect of international agreements
to which other subjects of international law are also parties.
Article 4
Treaties constituting international organizations and treaties adopted
within an international organization
The present Convention applies to the effects of a
succession of States in respect of: (a) any treaty which is the constituent instrument of
an international organization without prejudice to the rules concerning acquisition of
membership and without prejudice to any other relevant rules of the organization; (b) any
treaty adopted within an international organization without prejudice to any relevant
rules of the organization.
Article 5
Obligations imposed by international law independently of a treaty
The fact that a treaty is not considered to be in force in
respect of a State by virtue of the application of the present Convention shall not in any
way impair the duty of that State to fulfil any obligation embodied in the treaty to which
it is subject under international law independently of the treaty.
Article 6
Cases of succession of States covered by the present Convention
The present Convention applies only to the effects of a
succession of States occurring in conformity with international law and, in particular,
the principles of international law embodied in the Charter of the United Nations.
Article 7
Temporal application of the present Convention
1. Without prejudice to the application of any of the
rules set forth in the present Convention to which the effects of a succession of States
would be subject under international law independently of the Convention, the Convention
applies only in respect of a succession of States which has occurred after the entry into
force of the Convention except as may be otherwise agreed.
2. A successor State may, at the time of expressing its
consent to be bound by the present convention or at any time thereafter, make a
declaration that it will apply the provisions of the Convention in respect of its own
succession of States which has occurred before the entry into force of the Convention in
relation to any other contracting State or State Party to the Convention which makes a
declaration accepting the declaration of the successor State. Upon the entry into force of
the Convention as between the States making the declarations or upon the making of the
declaration of acceptance, whichever occurs later, the provisions of the Convention shall
apply to the effects of the succession of States as from the date of that succession of
States.
3. A successor State may at the time of signing or of
expressing its consent to be bound by the present Convention make a declaration that it
will apply the provisions of the Convention provisionally in respect of its own succession
of States which has occurred before the entry into force of the Convention in relation to
any other signatory or contracting State which makes a declaration accepting the
declaration of the successor State; upon the making of the declaration of acceptance,
those provisions shall apply provisionally to the effects of the succession of States as
between those two States as from the date of that succession of States.
4. Any declaration made in accordance with paragraph 2 or
3 shall be contained in a written notification communicated to the depositary, who shall
inform the Parties and the States entitled to become Parties to the present Convention of
the communication to him of that notification and of its terms.
Article 8
Agreements for the devolution of treaty obligations or rights from a
predecessor State to a successor State
1. The obligations or rights of a predecessor State under
treaties in force in respect of a territory at the date of a succession of States do not
become the obligations or rights of the successor State towards other States parties to
those treaties by reason only of the fact that the predecessor State and the successor
State have concluded an agreement providing that such obligations or rights shall devolve
upon the successor State.
2. Notwithstanding the conclusion of such an agreement,
the effects of a succession of States on treaties which, at the date of that succession of
States, were in force in respect of the territory in question are governed by the present
Convention.
Article 9
Unilateral declaration by a successor State regarding treaties of the
predecessor State
1. Obligations or rights under treaties in force in
respect of a territory at the date of a succession of States do not become the obligations
or rights of the successor State or of other States parties to those treaties by reason
only of the fact that the successor State has made a unilateral declaration providing for
the continuance in force of the treaties in respect of its territory. [*1494]
2. In such a case, the effects of the succession of States
on treaties which, at the date of that succession of States, were in force in respect of
the territory in question are governed by the present Convention.
Article 10
Treaties providing for the participation of a successor State
1. When a treaty provides that, on the occurrence of a
succession of States, a successor State shall have the option to consider itself a party
to the treaty, it may notify its succession in respect of the treaty in conformity with
the provisions of the treaty or, failing any such provisions, in conformity with the
provisions of the present Convention.
2. If a treaty provides that, on the occurrence of a
succession of States, a successor State shall be considered as a party to the treaty, that
provision takes effects as such only if the successor State expressly accepts in writing
to be so considered.
3. In cases falling under paragraph 1 or 2, a successor
State which establishes its consent to be a party to the treaty is considered as a party
from the date of the succession of States unless the treaty otherwise provides or it is
otherwise agreed.
Article 11
Boundary regimes
A succession of States does not as such affect: (a) a
boundary established by a treaty; or (b) obligations and rights established by a treaty
and relating to the regime of a boundary.
Article 12
Other territorial regimes
1. A succession of States does not as such affect: (a)
obligations relating to the use of any territory, or to restrictions upon its use,
established by a treaty for the benefit of any territory of a foreign State and considered
as attaching to the territories in question; (b) rights established by a treaty for the
benefit of any territory and relating to the use, or to restrictions upon the use, of any
territory of a foreign State and considered as attaching to the territories in question.
2. A succession of States does not as such affect: (a)
obligations relating to the use of any territory, or to restrictions upon its use,
established by a treaty for the benefit of a group of States or of all States and
considered as attaching to that territory; (b) rights established by a treaty for the
benefit of a group of States or of all States and relating to the use of any territory, or
to restrictions upon its use, and considered as attaching to that territory.
3. The provisions of the present article do not apply to
treaty obligations of the predecessor State providing for the establishment of foreign
military bases on the territory to which the succession of States relates.
Article 13
The present Convention and permanent sovereignty over natural wealth and
resources
Nothing in the present Convention shall affect the
principles of international law affirming the permanent sovereignty of every people and
every State over its natural wealth and resources.
Article 14
Questions relating to the validity of a treaty
Nothing in the present Convention shall be considered as
prejudging in any respect any question relating to the validity of a treaty.
PART II
SUCCESSION IN RESPECT OF PART OF TERRITORY
Article 15
Succession in respect of part of territory
When part of the territory of a State, or when any
territory for the international relations of which a State is responsible, not being part
of the territory of that State, becomes part of the territory of another State: (a)
treaties of the predecessor State cease to be in force in respect of the territory to
which the succession of States relates from the date of the succession of States; and (b)
treaties of the successor State are in force in respect of the territory to which the
succession of States relates from the date of the succession of States, unless it appears
from the treaty or is otherwise established that the application of the treaty to that
territory would be incompatible with the object and purpose of the treaty or would
radically change the conditions for its operation.
PART III
NEWLY INDEPENDENT STATES
SECTION 1. GENERAL RULE
Article 16
Position in respect of the treaties of the predecessor State
A newly independent State is not bound to
maintain in force, or to become a party to, any treaty by reason only of the fact that at
the date of the succession of States the treaty was in force in respect of the territory
to which the succession of States relates.
SECTION 2. MULTILATERAL TREATIES
Article 17
Participation in treaties in force at the date of the succession of States
1. Subject to paragraphs 2 and 3, a newly independent
State may, by a notification of succession, establish its status as a party to any
multilateral treaty which at the date of the succession of States was in force in respect
of the territory to which the succession of States relates.
2. Paragraph 1 does not apply if it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
newly independent State would be incompatible with the object and purpose of the treaty or
would radically change the conditions for its operation.
3. When, under the terms of the treaty or by reason of the
limited number of the negotiating States and the object and purpose of the treaty, the
participation of any other State in the treaty must be considered as requiring the consent
of all the parties, the newly independent State may establish its status as a party to the
treaty only with such consent.
Article 18
Participation in treaties not in force at the date of the succession of
States
1. Subject to paragraphs 3 and 4, a newly independent
State may, by a notification of succession, establish its status as a contracting State to
a multilateral treaty which is not in force if at the date of the succession of States the
predecessor State was a contracting State in respect of the territory to which that
succession of States relates.
2. Subject to paragraphs 3 and 4, a newly independent
State may, by a notification of succession, establish its status as a party to a
multilateral treaty which enters into force after the date of the succession of States if
at the date of the succession of States the predecessor State was a contracting State in
respect of the territory to which that succession of States relates.
3. Paragraphs 1 and 2 do not apply if it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
newly independent State would be incompatible with the object and purpose of the treaty or
would radically change the conditions for its operation.
4. When, under the terms of the treaty or by reason of the
limited number of the negotiating States and the object and purpose of the treaty, the
participation of any other State in the treaty must be considered as requiring the consent
of all the parties or of all the contracting States, the newly independent State may
establish its status as a party or as a contracting State to the treaty only with such
consent.
5. When a treaty provides that a specified number of
contracting States shall be necessary for its entry into force, a newly independent State
which establishes its status as a contracting State to the treaty under paragraph 1 shall
be counted as a contracting State for the purpose of that provision unless a different
intention appears from the treaty or is otherwise established.
Article 19
Participation in treaties signed by the predecessor State subject to
ratification, acceptance or approval
1. Subject to paragraphs 3 and 4, if before the date of
the succession of States the predecessor State signed a multilateral treaty subject to
ratification, acceptance or approval and by the signature intended that the treaty should
extend to the territory to which the succession of States relates, the newly independent
State may ratify, accept or approve the treaty as if it had signed that treaty and may
thereby become a party or a contracting State to it.
2. For the purpose of paragraph 1, unless a different
intention appears from the treaty or is otherwise established, the signature by the
predecessor State of a treaty is considered to express the intention that the treaty
should extend to the entire territory for the international relations of which the
predecessor State was responsible.
3. Paragraph 1 does not apply if it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
newly independent State would be incompatible with the object and purpose of the treaty or
would radically change the conditions for its operation.
4. When, under the terms of the treaty or by reason of the
limited number of the negotiating States and the object and purpose of the treaty, the
participation of any other State in the treaty must be considered as requiring the consent
of all the parties or of all the contracting States, the newly independent State may
become a party or a contracting State to the treaty only with such consent.
Article 20
Reservations
1. When a newly independent State establishes its status
as a party or as a contracting State to a multilateral treaty by a notification of
succession under article 17 or 18, it shall be considered as maintaining any reservation
to that treaty which was applicable at the date of the succession of States in respect of
the territory to which the succession of States relates unless, when making the
notification of succession, it expresses a contrary intention or formulates a reservation
which relates to the same subject-matter as that reservation.
2. When making a notification of succession establishing
its status as a party or as a contracting State to a multilateral treaty under article 17
or 18, a newly independent State may formulate a reservation unless the reservation is one
the formulation of which would be excluded by the provisions of sub-paragraph (a), (b) or
(c) of article 19 of the Vienna Convention on the Law of Treaties.
3. When a newly independent State formulates a reservation
in conformity with paragraph 2, the rules set out in articles 20 to 23 of the Vienna
Convention on the Law of Treaties apply in respect of that reservation.
Article 21
Consent to be bound by part of a treaty and choice between differing
provisions
1. When making a notification of succession under article
17 or 18 establishing its status as a party or contracting State to a multilateral treaty,
a newly independent State may, if the treaty so permits, express its consent to be bound
by part of the treaty or make a choice between differing provisions under the conditions
laid down in the treaty for expressing such consent or making such choice.
2. A newly independent State may also exercise, under the
same conditions as the other parties or contracting States, any right provided for in the
treaty to withdraw or modify any consent expressed or choice made by itself or by the
predecessor State in respect of the territory to which the succession of States relates.
3. If the newly independent State does not in conformity
with paragraph 1 express its consent or make a choice, or in conformity with paragraph 2
withdraw or modify the consent or choice of the predecessor State, it shall be considered
as maintaining: (a) the consent of the predecessor State, in conformity with the treaty,
to be bound, in respect of the territory to which the succession of States relates, by
part of that treaty; or (b) the choice of the predecessor State, in conformity with the
treaty, between differing provisions in the application of the treaty in respect of the
territory to which the succession of States relates.
Article 22
Notification of succession
1. A notification of succession in respect of a
multilateral treaty under article 17 or 18 shall be made in writing.
2. If the notification of succession is not signed by the
Head of State, Head of Government or Minister for Foreign Affairs, the representative of
the State communicating it may be called upon to produce full powers.
3. Unless the treaty otherwise provides, the notification
of succession shall: (a) be transmitted by the newly independent State to the depositary,
or, if there is no depositary, to the parties or the contracting States; (b) be considered
to be made by the newly independent State on the date on which it is received by the
depositary or, if there is no depositary, on the date on which it is received by all the
parties or, as the case may be, by all the contracting States.
4. Paragraph 3 does not affect any duty that the
depositary may have, in accordance with the treaty or otherwise, to inform the parties or
the contracting States of the notification of succession or any communication made in
connection therewith by the newly independent State.
5. Subject to the provisions of the treaty, the
notification of succession or the communication made in connection therewith shall be
considered as received by the State for which it is intended only when the latter State
has been informed by the depositary.
Article 23
Effects of a notification of succession
1. Unless the treaty otherwise provides or it is otherwise
agreed, a newly independent State which makes a notification of succession under article
17 or article 18, paragraph 2, shall be considered a party to the treaty from the date of
the succession of States or from the date of entry into force of the treaty, whichever is
the later date.
2. Nevertheless, the operation of the treaty shall be
considered as suspended as between the newly independent State and the other parties to
the treaty until the date of making of the notification of succession except in so far as
that treaty may be applied provisionally in accordance with article 27 or as may be
otherwise agreed.
3. Unless the treaty otherwise provides or it is otherwise
agreed, a newly independent State which makes a notification of succession under article
18, paragraph 1, shall be considered a contracting State to the treaty from the date on
which the notification of succession is made.
SECTION 3. BILATERAL TREATIES
Article 24
Conditions under which a treaty is considered as being in force in the case
of a succession of States
1. A bilateral treaty which at the date of a succession of
States was in force in respect of the territory to which the succession of States relates
is considered as being in force between a newly independent State and the other State
party when: (a) they expressly so agree; or (b) by reason of their conduct they are to be
considered as having so agreed.
2. A treaty considered as being in force under paragraph 1
applies in the relations between the newly independent State and the other State party
from the date of the succession of States, unless a different intention appears from their
agreement or is otherwise established.
Article 25
The position as between the predecessor State and the newly independent
State
A treaty which under article 24 is considered as being in
force between a newly independent State and the other State party is not by reason only of
that fact to be considered as being in force also in the relations between the predecessor
State and the newly independent State.
Article 26
Termination, suspension of operation or amendment of the treaty as between
the predecessor State and the other State party
1. When under article 24 a treaty is considered as being
in force between a newly independent State and the other State party, the treaty: (a) does
not cease to be in force between them by reason only of the fact that it has subsequently
been terminated as between the predecessor State and the other State party; (b) is not
suspended in operation as between them by reason only of the fact that it has subsequently
been suspended in operation as between the predecessor State and the other State party;
(c) is not amended as between them by reason only of the fact that it has subsequently
been amended as between the predecessor State and the other State party.
2. The fact that a treaty has been terminated or, as the
case may be, suspended in operation as between the predecessor State and the other State
party after the date of the succession of States does not prevent the treaty from being
considered to be in force or, as the case may be, in operation as between the newly
independent State and the other State party if it is established in accordance with
article 24 that they so agreed.
3. The fact that a treaty has been amended as between the
predecessor State and the other State party after the date of the succession of States
does not prevent the unamended treaty from being considered to be in force under article
24 as between the newly independent State and the other State party, unless it is
established that they intended the treaty as amended to apply between them.
SECTION 4. PROVISIONAL APPLICATION
Article 27
Multilateral treaties
1. If, at the date of the succession of States, a
multilateral treaty was in force in respect of the territory to which the succession of
States relates and the newly independent State gives notice of its intention that the
treaty should be applied provisionally in respect of its territory, that treaty shall
apply provisionally between the newly independent State and any party which expressly so
agrees or by reason of its conduct is to be considered as having so agreed.
2. Nevertheless, in the case of a treaty which falls
within the category mentioned in article 17, paragraph 3, the consent of all the parties
to such provisional application is required.
3. If, at the date of the succession of States, a
multilateral treaty not yet in force was being applied provisionally in respect of the
territory to which the succession of States relates and the newly independent State gives
notice of its intention that the treaty should continue to be applied provisionally in
respect of its territory, that treaty shall apply provisionally between the newly
independent State and any contracting State which expressly so agrees or by reason of its
conduct is to be considered as having so agreed.
4. Nevertheless, in the case of a treaty which falls
within the category mentioned in article 17, paragraph 3, the consent of all the
contracting States to such continued provisional application is required.
5. Paragraphs 1 to 4 do not apply if it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
newly independent State would be incompatible with the object and purpose of the treaty or
would radically change the conditions for its operation.
Article 28
Bilateral treaties
A bilateral treaty which at the date of a succession of
States was in force or was being provisionally applied in respect of the territory to
which the succession of States relates is considered as applying provisionally between the
newly independent State and the other State concerned when: (a) they expressly so agree;
or (b) by reason of their conduct they are to be considered as having so agreed.
Article 29
Termination of provisional application
1. Unless the treaty otherwise provides or it is otherwise
agreed, the provisional application of a multilateral treaty under article 27 may be
terminated: (a) by reasonable notice of termination given by the newly independent State
or the party or contracting State provisionally applying the treaty and the expiration of
the notice; or (b) in the case of a treaty which falls within the category mentioned in
article 17, paragraph 3, by reasonable notice of termination given by the newly
independent State or all of the parties or, as the case may be, all of the contracting
States and the expiration of the notice.
2. Unless the treaty otherwise provides or it is otherwise
agreed, the provisional application of a bilateral treaty under article 28 may be
terminated by reasonable notice of termination given by the newly independent State or the
other State concerned and the expiration of the notice.
3. Unless the treaty provides for a shorter period for its
termination or it is otherwise agreed, reasonable notice of termination shall be twelve
months' notice from the date on which it is received by the other State or States
provisionally applying the treaty.
4. Unless the treaty otherwise provides or it is otherwise
agreed, the provisional application of a multilateral treaty under article 27 shall be
terminated if the newly independent State gives notice of its intention not to become a
party to the treaty.
SECTION 5. NEWLY INDEPENDENT STATES FORMED
FROM TWO OR MORE TERRITORIES
Article 30
Newly independent States formed from two or more territories
1. Articles 16 to 29 apply in the case of a newly
independent State formed from two or more territories.
2. When a newly independent State formed from two or more
territories is considered as or becomes a party to a treaty by virtue of article 17, 18 or
24 and at the date of the succession of States the treaty was in force, or consent to be
bound had been given, in respect of one or more, but not all, of those territories, the
treaty shall apply in respect of the entire territory of that State unless: (a) it appears
from the treaty or is otherwise established that the application of the treaty in respect
of the entire territory would be incompatible with the object and purpose of the treaty or
would radically change the conditions for its operation; (b) in the case of a multilateral
treaty not falling under article 17, paragraph 3, or under article 18, paragraph 4, the
notification of succession is restricted to the territory in respect of which the treaty
was in force at the date of the succession of States, or in respect of which consent to be
bound by the treaty had been given prior to that date; (c) in the case of a multilateral
treaty falling under article 17, paragraph 3, or under article 18, paragraph 4, the newly
independent State and the other States parties or, as the case may be, the other
contracting States otherwise agree; or (d) in the case of a bilateral treaty, the newly
independent State and the other State concerned otherwise agree.
3. When a newly independent State formed from two or more
territories becomes a party to a multilateral treaty under article 19 and by the signature
or signatures of the predecessor State or States it had been intended that the treaty
should extend to one or more, but not all, of those territories, the treaty shall apply in
respect of the entire territory of the newly independent State unless: (a) it appears from
the treaty or is otherwise established that the application of the treaty in respect of
the entire territory would be incompatible with the object and purpose of the treaty or
would radically change the conditions for its operation; (b) in the case of a multilateral
treaty not falling under article 19, paragraph 4, the ratification, acceptance or approval
of the treaty is restricted to the territory or territories to which it was intended that
the treaty should extend; or (c) in the case of a multilateral treaty falling under
article 19, paragraph 4, the newly independent State and the other States parties or, as
the case may be, the other contracting States otherwise agree.
PART IV
UNITING AND SEPARATION OF STATES
Article 31
Effects of a uniting of States in respect of treaties in force at the date
of the succession of States
1. When two or more States unite and so form one successor
State, any treaty in force at the date of the succession of States in respect of any of
them continues in force in respect of the successor State unless: (a) the successor State
and the other State party or States parties otherwise agree; or (b) it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
successor State would be incompatible with the object and purpose of the treaty or would
radically change the conditions for its operation.
2. Any treaty continuing in force in conformity with
paragraph 1 shall apply only in respect of the part of the territory of the successor
State in respect of which the treaty was in force at the date of the succession of States
unless: (a) in the case of a multilateral treaty not falling within the category mentioned
in article 17, paragraph 3, the successor State makes a notification that the treaty shall
apply in respect of its entire territory; (b) in the case of a multilateral treaty falling
within the category mentioned in article 17, paragraph 3, the successor State and the
other States parties otherwise agree; or (c) in the case of a bilateral treaty, the
successor State and the other State party otherwise agree.
3. Paragraph 2(a) does not apply if it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
entire territory of the successor State would be incompatible with the object and purpose
of the treaty or would radically change the conditions for its operation.
Article 32
Effects of a uniting of States in respect of treaties not in force at the
date of the succession of States
1. Subject to paragraphs 3 and 4, a successor State
falling under article 31 may, by making a notification, establish its status as a
contracting State to a multilateral treaty which is not in force if, at the date of the
succession of States, any of the predecessor States was a contracting State to the treaty.
2. Subject to paragraphs 3 and 4, a successor State
falling under article 31 may, by making a notification, establish its status as a party to
a multilateral treaty which enters into force after the date of the succession of States
if, at that date, any of the predecessor States was a contracting State to the treaty.
3. Paragraphs 1 and 2 do not apply if it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
successor State would be incompatible with the object and purpose of the treaty or would
radically change the conditions for its operation.
4. If the treaty is one falling within the category
mentioned in article 17, paragraph 3, the successor State may establish its status as a
party or as a contracting State to the treaty only with the consent of all the parties or
of all the contracting States.
5. Any treaty to which the successor State becomes a
contracting State or a party in conformity with paragraph 1 or 2 shall apply only in
respect of the part of the territory of the successor State in respect of which consent to
be bound by the treaty had been given prior to the date of the succession of States
unless: (a) in the case of a multilateral treaty not falling within the category mentioned
in article 17, paragraph 3, the successor State indicates in its notification made under
paragraph 1 or 2 that the treaty shall apply in respect of its entire territory; or (b) in
the case of a multilateral treaty falling within the category mentioned in article 17,
paragraph 3, the successor State and all the parties or, as the case may be, all the
contracting States otherwise agree.
6. Paragraph 5(a) does not apply if it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
entire territory of the successor State would be incompatible with the object and purpose
of the treaty or would radically change the conditions for its operation.
Article 33
Effects of a uniting of States in respect of treaties signed by a
predecessor State subject to ratification, acceptance or approval
1. Subject to paragraphs 2 and 3, if before the date of
the succession of States one of the predecessor States had signed a multilateral treaty
subject to ratification, acceptance or approval, a successor State falling under article
31 may ratify, accept or approve the treaty as if it had signed that treaty and may
thereby become a party or a contracting State to it.
2. Paragraph 1 does not apply if it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
successor State would be incompatible with the object and purpose of the treaty or would
radically change the conditions for its operation.
3. If the treaty is one falling within the category
mentioned in article 17, paragraph 3, the successor State may become a party or a
contracting State to the treaty only with the consent of all the parties or of all the
contracting States.
4. Any treaty to which the successor State becomes a party
or a contracting State in conformity with paragraph 1 shall apply only in respect of the
part of the territory of the successor State in respect of which the treaty was signed by
one of the predecessor States unless: (a) in the case of a multilateral treaty not falling
within the category mentioned in article 17, paragraph 3, the successor State when
ratifying, accepting or approving the treaty gives notice that the treaty shall apply in
respect of its entire territory; or (b) in the case of a multilateral treaty falling
within the category mentioned in article 17, paragraph 3, the successor State and all the
parties or, as the case may be, all the contracting States otherwise agree.
5. Paragraph 4(a) does not apply if it appears from the
treaty or is otherwise established, that the application of the treaty in respect of the
entire territory of the successor State would be incompatible with the object and purpose
of the treaty or would radically change the conditions for its operation.
Article 34
Succession of States in cases of separation of parts of a State
1. When a part or parts of the territory of a State
separate to form one or more States, whether or not the predecessor State continues to
exist: (a) any treaty in force at the date of the succession of States in respect of the
entire territory of the predecessor State continues in force in respect of each successor
State so formed; (b) any treaty in force at the date of the succession of States in
respect only of that part of the territory of the predecessor State which has become a
successor State continues in force in respect of that successor State alone.
2. Paragraph 1 does not apply if: (a) the States concerned
otherwise agree; or (b) it appears from the treaty or is otherwise established that the
application of the treaty in respect of the successor State would be incompatible with the
object and purpose of the treaty or would radically change the conditions for its
operation.
Article 35
Position if a State continues after separation of part of its territory
When, after separation of any part of the territory of a
State, the predecessor State continues to exist, any treaty which at the date of the
succession of States was in force in respect of the predecessor State continues in force
in respect of its remaining territory unless: (a) the States concerned otherwise agree;
(b) It is established that the treaty related only to the territory which has separated
from the predecessor State; or (c) it appears from the treaty or is otherwise established
that the application of the treaty in respect of the predecessor State would be
incompatible with the object and purpose of the treaty or would radically change the
conditions for its operation.
Article 36
Participation in treaties not in force at the date of the succession of
States in cases of separation of parts of a State
1. Subject to paragraphs 3 and 4, a successor State
falling under article 34, paragraph 1, may, by making a notification, establish its status
as a contracting State to a multilateral treaty which is not in force if, at the date of
the succession of States, the predecessor State was a contracting State to the treaty in
respect of the territory to which the succession of States relates.
2. Subject to paragraphs 3 and 4, a successor State
falling under article 34, paragraph 1, may, by making a notification, establish its status
as a party to a multilateral treaty which enters into force after the date of the
succession of States if at that date the predecessor State was a contracting State to the
treaty in respect of the territory to which the succession of States relates.
3. Paragraphs 1 and 2 do not apply if it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
successor State would be incompatible with the object and purpose of the treaty or would
radically change the conditions for its operation.
4. If the treaty is one falling within the category
mentioned in article 17, paragraph 3, the successor State may establish its status as a
party or as a contracting State to the treaty only with the consent of all the parties or
of all the contracting States.
Article 37
Participation in cases of separation of parts of a State in treaties signed
by the predecessor State subject to ratification, acceptance or approval
1. Subject to paragraphs 2 and 3, if before the date of
the succession of States the predecessor State had signed a multilateral treaty subject to
ratification, acceptance or approval and the treaty, if it had been in force at that date,
would have applied in respect of the territory to which the succession of States relates,
a successor State falling under article 34, paragraph 1, may ratify, accept or approve the
treaty as if it had signed that treaty and may thereby become a party or a contracting
State to it.
2. Paragraph 1 does not apply if it appears from the
treaty or is otherwise established that the application of the treaty in respect of the
successor State would be incompatible with the object and purpose of the treaty or would
radically change the conditions for its operation.
3. If the treaty is one falling within the category
mentioned in article 17, paragraph 3, the successor State may become a party or a
contracting State to the treaty only with the consent of all the parties or of all the
contracting States.
Article 38
Notifications
1. Any notification under articles 31, 32 or 36 shall be
made in writing.
2. If the notification is not signed by the Head of State,
Head of Government or Minister for Foreign Affairs, the representative of the State
communicating it may be called upon to produce full powers.
3. Unless the treaty otherwise provides, the notification
shall: (a) be transmitted by the successor State to the depositary, or, if there is no
depositary, to the parties or the contracting States; (b) be considered to be made by the
successor State on the date on which it is received by the depositary or, if there is no
depositary, on the date on which it is received by all the parties or, as the case may be,
by all the contracting States.
4. Paragraph 3 does not affect any duty that the
depositary may have, in accordance with the treaty or otherwise, to inform the parties or
the contracting States of the notification or any communication made in connection
therewith by the successor State.
5. Subject to the provisions of the treaty, such
notification or communication shall be considered as received by the State for which it is
intended only when the latter State has been informed by the depositary.
PART V
MISCELLANEOUS PROVISIONS
Article 39
Cases of State responsibility and outbreak of hostilities
The provisions of the present Convention shall not
prejudge any question that may arise in regard to the effects of a succession of States in
respect of a treaty from the international responsibility of a State or from the outbreak
of hostilities between States.
Article 40
Cases of military occupation
The provisions of the present Convention shall not
prejudge any question that may arise in regard to a treaty from the military occupation of
a territory.
PART VI
SETTLEMENT OF DISPUTES
Article 41
Consultation and negotiation
If a dispute regarding the interpretation or application
of the present Convention arises between two or more Parties to the Convention, they
shall, upon the request of any of them, seek to resolve it by a process of consultation
and negotiation.
Article 42
Conciliation
If the dispute is not resolved within six months of the
date on which the request referred to in article 41 has been made, any party to the
dispute may submit it to the conciliation procedure specified in the Annex to the present
Convention by submitting a request to that effect to the Secretary-General of the United
Nations and informing the other party or parties to the dispute of the request.
Article 43
Judicial settlement and arbitration
Any State at the time of signature or ratification of the
present Convention or accession thereto or at any time thereafter, may, by notification to
the depositary, declare that, where a dispute has not been resolved by the application of
the procedures referred to in articles 41 and 42, that dispute may be submitted for a
decision to the International Court of Justice by a written application of any party to
the dispute, or in the alternative to arbitration, provided that the other party to the
dispute has made a like declaration.
Article 44
Settlement by common consent
Notwithstanding articles 41, 42 and 43, if a dispute
regarding the interpretation or application of the present Convention arises between two
or more Parties to the Convention, they may by common consent agree to submit it to the
International Court of Justice, or to arbitration, or to any other appropriate procedure
for the settlement of disputes.
Article 45
Other provisions in force for the settlement of disputes
Nothing in articles 41 to 44 shall affect the rights or
obligations of the Parties to the present Convention under any provisions in force binding
them with regard to the settlement of disputes.
PART VII
FINAL PROVISIONS
Article 46
Signature
The present Convention shall be open for signature by all
States until 28 February 1979 at the Federal Ministry for Foreign Affairs of the Republic
of Austria, and subsequently, until 31 August 1979, at United Nations Headquarters in New
York.
Article 47
Ratification
The present Convention is subject to ratification. The
instruments of ratification shall be deposited with the Secretary-General of the United
Nations.
Article 48
Accession
The present Convention shall remain open for accession by
any State. The instruments of accession shall be deposited with the Secretary-General of
the United Nations.
Article 49
Entry into force
1. The present Convention shall enter into force on the
thirtieth day following the date of deposit of the fifteenth instrument of ratification or
accession.
2. For each State ratifying or acceding to the Convention
after the deposit of the fifteenth instrument of ratification or accession, the Convention
shall enter into force on the thirtieth day after deposit by such State of its instrument
of ratification or accession.
Article 50
Authentic texts
The original of the present Convention, of which the
Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall
be deposited with the Secretary-General of the United Nations.
IN WITNESS WHEREOF the undersigned Plenipotentiaries,
being duly authorized thereto by their respective Governments, have signed the present
Convention.
DONE at Vienna, this twenty-third day of August, one
thousand nine hundred and seventy-eight.
[Signatures not reproduced here]
A N N E X
1. A list of conciliators consisting of qualified jurists
shall be drawn up and maintained by the Secretary-General of the United Nations. To this
end, every State which is a Member of the United Nations or a Party to the present
Convention shall be invited to nominate two conciliators, and the names of the persons so
nominated shall constitute the list. The term of a conciliator, including that of any
conciliator nominated to fill a casual vacancy, shall be five years and may be renewed. A
conciliator whose term expires shall continue to fulfil any function for which he shall
have been chosen under the following paragraph.
2. When a request has been made to the Secretary-General
under article 42, the Secretary-General shall bring the dispute before a conciliation
commission constituted as follows: The State or States constituting one of the parties to
the dispute shall appoint: (a) one conciliator of the nationality of that State or of one
of those States, who may or may not be chosen from the list referred to in paragraph 1;
and (b) one conciliator not of the nationality of that State or of any of those States,
who shall be chosen from the list. The State or States constituting the other party to the
dispute shall appoint two conciliators in the same way. The four conciliators chosen by
the parties shall be appointed within sixty days following the date on which the
Secretary-General receives the request. The four conciliators shall, within sixty days
following the date of the appointment of the last of them, appoint a fifth conciliator
chosen from the list, who shall be chairman. If the appointment of the chairman or of any
of the other conciliators has not been made within the period prescribed above for such
appointment, it shall be made by the Secretary-General within sixty days following the
expiry of that period. The appointment of the chairman may be made by the
Secretary-General either from the list or from the membership of the International Law
Commission. Any of the periods within which appointments must be made may be extended by
agreement between the parties to the dispute. Any vacancy shall be filled in the manner
prescribed for the initial appointment.
3. The Conciliation Commission shall decide its own
procedure. The Commission, with the consent of the parties to the dispute, may invite any
Party to the present Convention to submit to it its views orally or in writing. Decisions
and recommendations of the Commission shall be made by a majority vote of the five
members.
4. The Commission may draw the attention of the parties to
the dispute to any measures which might facilitate an amicable settlement.
5. The Commission shall hear the parties, examine the
claims and objections, and make proposals to the parties with a view to reaching an
amicable settlement of the dispute.
6. The Commission shall report within twelve months of its
constitution. Its report shall be deposited with the Secretary-General and transmitted to
the parties to the dispute. The report of the Commission, including any conclusions stated
therein regarding the facts or questions of law, shall not be binding upon the parties and
it shall have no other character than that of recommendations submitted for the
consideration of the parties in order to facilitate an amicable settlement of the dispute.
7. The Secretary-General shall provide the Commission with
such assistance and facilities as it may require. The expenses of the Commission shall be
borne by the United Nations.
RESOLUTIONS ADOPTED BY THE UNITED
NATIONS CONFERENCE ON SUCCESSION OF STATES IN RESPECT OF TREATIES RESOLUTION CONCERNING
NAMIBIA
The United Nations Conference on Succession of States in
Respect of Treaties, Taking note of the statement made by the Chairman of the delegation
of the United Nations Council for Namibia during the resumed session of the Conference (1
A/CONF.80/SR.38) Taking into account United Nations General Assembly resolution 2145 (XXI)
of 27 October 1966, by which the General Assembly decided to terminate the Mandate of
South Africa over Namibia and by which the United Nations assumed direct responsibility
for the Territory until independence, and General Assembly resolution 2248 (S-V) of 19 May
1967, by which the United Nations Council for Namibia was established and entrusted with
the responsibility of administering the Territory until independence, Recalling the
advisory opinion of the International Court of Justice of 21 June 1971 which declared that
the continued presence of South Africa in Namibia being illegal, South Africa is under
obligation to withdraw its administration from the Territory and thus put an end to its
illegal occupation of the Territory, Further recalling the relevant resolutions of the
United Nations, in particular Security Council resolutions 385 (1976) which reaffirmed the
territorial integrity and unity of Namibia and 432 (1978) which took note of paragraph 7
of General Assembly resolution 32/9 D (1977) declaring that Walvis Bay is an integral part
of Namibia, Resolves that the relevant articles of the Vienna Convention on Succession of
States in Respect of Treaties shall be interpreted, in the case of Namibia, in conformity
with United Nations resolutions on the question of Namibia; Further resolves that South
Africa is not the predecessor State of the future independent State of Namibia.
RESOLUTION RELATING TO INCOMPATIBLE
TREATY OBLIGATIONS AND RIGHTS ARISING FROM A UNITING OF STATES
The United Nations Conference on Succession of States in
Respect of Treaties, Considering that a uniting of States may give rise to incompatible
obligations and rights as a result of the differing treaty regimes applicable to the two
or more States which unite, Recognizing the desirability of resolving such questions
through a process of consultation and negotiation, Recommends that if a uniting of States
gives rise to incompatible obligations or rights under treaties, the successor State and
the other States parties to the treaties in question make every effort to resolve the
matter by mutual agreement.
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