PUBLIC INTERNATIONAL LAW CODE

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 Table of Content

I. THE SYSTEM OF PUBLIC INTERNATIONAL LAW

1. Sources
1.1 Vienna Convention on the Law of Treaties, 1969
1.2 Draft conclusions on identification of customary international law 2018
1.3 Guiding Principles applicable to unilateral declarations of States capable of creating legal
obligations
1.4 Conclusions of the work of the Study Group on the Fragmentation of International Law:
Difficulties arising from the Diversification and Expansion of International Law, 2006
2. Responsibility of States for Internationally Wrongful Acts 2001

II. THE SUBJECTS OF PUBLIC INTERNATIONAL LAW

1. United Nations Charter, 1945

2. XX
3.
4. CCC

III. THE FUNCTIONS OF PUBLIC INTERNATIONAL LAW

1. XX
2. CCC

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 VIENNA CONVENTION
ON
THE LAW OF TREATIES 1969

Done at Vienna on 23 May 1969. Entered into force on 27 January 1980. United Nations, Treaty Series,
vol. 1155, p. 331

The States Parties to the present Convention,

Considering the fundamental role of treaties in the history of international relations,

Recognizing the ever-increasing importance of treaties as a source of international law and as a means of
developing peaceful cooperation among nations, whatever their constitutional and social systems,

Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally
recognized,

Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful
means and in conformity with the principles of justice and international law,

Recalling the determination of the peoples of the United Nations to establish conditions under which justice
and respect for the obligations arising from treaties can be maintained,

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,

Believing that the codification and progressive development of the law of treaties achieved in the present
Convention will promote the purposes of the United Nations set forth in the Charter, namely, the
maintenance of international peace and security, the development of friendly relations and the achievement
of cooperation among nations,

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 INTRODUCTION

Article 1 Scope of the present Convention

The present Convention applies to 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. “ratification”, “acceptance”, “approval” and “accession” 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;
c. “full powers” means a document emanating from the competent authority of a State designating a person
or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for
expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect
to a treaty;

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d. “reservation” means a unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding 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;
e. “negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty;
f. “contracting State” means a State which has consented to be bound by the treaty, whether or not the treaty
has entered into force;
g. “party” means a State which has consented to be bound by the treaty and for which the treaty is in force
h. “third State” means a State not a party to the treaty;
i. “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 International agreements not within the scope of the present Convention
The fact that the present Convention does not apply to international agreements concluded between States
and other subjects of international law or between such other subjects of international law, or to
international agreements not in written form, shall not affect:
a. the legal force of such agreements;
b. the application to them of any of the rules set forth in the present Convention to which they would be
subject under international law independently of the Convention;
c. the application of the Convention to the relations of States as between themselves under international
agreements to which other subjects of international law are also parties.

Article 4 Non-retroactivity of the present Convention

Without prejudice to the application of any rules set forth in the present Convention to which treaties would
be subject under international law independently of the Convention, the Convention applies only to treaties
which are concluded by States after the entry into force of the present Convention with regard to such
States.

Article 5 Treaties constituting international organizations and treaties adopted within an

international organization
The present Convention applies to any treaty which is the constituent instrument of an international
organization and to any treaty adopted within an international organization without prejudice to any
relevant rules of the organization.

PART II CONCLUSION AND ENTRY INTO FORCE OF TREATIES

SECTION 1 CONCLUSION OF TREATIES

Article 6 Capacity of States to conclude treaties

Every State possesses capacity to conclude treaties.

Article 7 Full powers

1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a
treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
a. he produces appropriate full powers; or
b. it appears from the practice of the States concerned or from other circumstances that their intention was
to consider that person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as
representing their State:
a. Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all
acts relating to the conclusion of a treaty;
b. heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting
State and the State to which they are accredited;
c. representatives accredited by States to an international conference or to an international organization or
one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

Article 8 Subsequent confirmation of an act performed without authorization

An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7
as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that
State.

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Article 9 Adoption of the text
1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing
up except as provided in paragraph 2.
2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of
the States present and voting, unless by the same majority they shall decide to apply a different rule.

Article 10 Authentication of the text

The text of a treaty is established as authentic and definitive:
a. by such procedure as may be provided for in the text or agreed upon by the States participating in its
drawing up; or
b. failing such procedure, by the signature, signature ad referendum or initialling by the representatives of
those States of the text of the treaty or of the Final Act of a conference incorporating the text.

Article 11 Means of expressing consent to be bound by a treaty

The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments
constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

Article 12 Consent to be bound by a treaty expressed by signature

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when:
a. the treaty provides that signature shall have that effect;
b. it is otherwise established that the negotiating States were agreed that signature should have that effect;
or
c. the intention of the State to give that effect to the signature appears from the full powers of its
representative or was expressed during the negotiation.
2. For the purposes of paragraph 1:
a. the initialling of a text constitutes a signature of the treaty when it is established that the negotiating
States so agreed;
b. the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full
signature of the treaty.

Article 13 Consent to be bound by a treaty expressed by an exchange of instruments constituting a

treaty
The consent of States to be bound by a treaty constituted by instruments exchanged between them is
expressed by that exchange when:
a. the instruments provide that their exchange shall have that effect; or
b. it is otherwise established that those States were agreed that the exchange of instruments should have that
effect.

Article 14 Consent to be bound by a treaty expressed by ratification, acceptance or approval

1. The consent of a State to be bound by a treaty is expressed by ratification when:
a. the treaty provides for such consent to be expressed by means of ratification;
b. it is otherwise established that the negotiating States were agreed that ratification should be required;
c. the representative of the State has signed the treaty subject to ratification; or
d. the intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative or was expressed during the negotiation.
2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions
similar to those which apply to ratification.

Article 15 Consent to be bound by a treaty expressed by accession

The consent of a State to be bound by a treaty is expressed by accession when:
a. the treaty provides that such consent may be expressed by that State by means of accession;
b. it is otherwise established that the negotiating States were agreed that such consent may be expressed by
that State by means of accession; or
c. all the parties have subsequently agreed that such consent may be expressed by that State by means of
accession.

Article 16 Exchange or deposit of instruments of ratification, acceptance, approval or accession

Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish
the consent of a State to be bound by a treaty upon:

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a. their exchange between the contracting States;
b. their deposit with the depositary; or
c. their notification to the contracting States or to the depositary, if so agreed.

Article 17 Consent to be bound by part of a treaty and choice of differing provisions

1. Without prejudice to articles 19 to 23, the consent of a State to be bound by part of a treaty is effective
only if the treaty so permits or the other contracting States so agree.
2. The consent of a State to be bound by a treaty which permits a choice between differing provisions is
effective only if it is made clear to which of the provisions the consent relates.

Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
a. it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification,
acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
b. it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and
provided that such entry into force is not unduly delayed.

SECTION 2 RESERVATIONS

Article 19 Formulation of reservations

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation
unless:
a. the reservation is prohibited by the treaty;
b. the treaty provides that only specified reservations, which do not include the reservation in question, may
be made; or
c. in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and
purpose of the treaty.

Article 20 Acceptance of and objection to reservations

1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other
contracting States unless the treaty so provides.
2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty
that the application of the treaty in its entirety between all the parties is an essential condition of the consent
of each one to be bound by the treaty, a reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organization and unless it otherwise
provides, a reservation requires the acceptance of the competent organ of that organization.
4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:
a. acceptance by another contracting State of a reservation constitutes the reserving State a party to the
treaty in relation to that other State if or when the treaty is in force for those States;
b. an objection by another contracting State to a reservation does not preclude the entry into force of the
treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by
the objecting State;
c. an act expressing a State’s consent to be bound by the treaty and containing a reservation is effective as
soon as at least one other contracting State has accepted the reservation.
5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is
considered to have been accepted by a State if it shall have raised no objection to the reservation by the end
of a period of twelve months after it was notified of the reservation or by the date on which it expressed its
consent to be bound by the treaty, whichever is later.

Article 21 Legal effects of reservations and of objections to reservations

1. A reservation established with regard to another party in accordance with articles 19, 20 and 23:
a. modifies for the reserving State in its relations with that other party the provisions of the treaty to which
the reservation relates to the extent of the reservation; and
b. modifies those provisions to the same extent for that other party in its relations with the reserving State.
2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.
3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself
and the reserving State, the provisions to which the reservation relates do not apply as between the two
States to the extent of the reservation.

Article 22 Withdrawal of reservations and of objections to reservations

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1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a
State which has accepted the reservation is not required for its withdrawal.
2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time
3. Unless the treaty otherwise provides, or it is otherwise agreed:
a. the withdrawal of a reservation becomes operative in relation to another contracting State only when
notice of it has been received by that State;
b. the withdrawal of an objection to a reservation becomes operative only when notice of it has been
received by the State which formulated the reservation.

Article 23 Procedure regarding reservations

1. A reservation, an express acceptance of a reservation and an objection to a reservation must be
formulated in writing and communicated to the contracting States and other States entitled to become
parties to the treaty.
2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must
be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such
a case the reservation shall be considered as having been made on the date of its confirmation.
3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the
reservation does not itself require confirmation.
4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.

SECTION 3 ENTRY INTO FORCE AND PROVISIONAL, APPLICATION OF TREATIES

Article 24 Entry into force

1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating
States may agree.
2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the
treaty has been established for all the negotiating States.
3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into
force, the treaty enters into force for that State on that date, unless the treaty otherwise provides.
4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of
States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the
depositary and other matters arising necessarily before the entry into force of the treaty apply from the time
of the adoption of its text.

Article 25 Provisional application

1. A treaty or a part of a treaty is applied provisionally pending its entry into force if:
a. the treaty itself so provides; or
b. the negotiating States have in some other manner so agreed.
2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional
application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the
other States between which the treaty is being applied provisionally of its intention not to become a party to
the treaty.

PART III OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES

SECTION 1 OBSERVANCE OF TREATIES

Article 26 “Pacta sunt servanda”

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27 Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
This rule is without prejudice to article 46.

SECTION 2 APPLICATION OF TREATIES

Article 28 Non-retroactivity of treaties

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a
party in relation to any act or fact which took place or any situation which ceased to exist before the date of
the entry into force of the treaty with respect to that party.

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Article 29 Territorial scope of treaties
Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each
party in respect of its entire territory.

Article 30 Application of successive treaties relating to the same subject matter

1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to
successive treaties relating to the same subject matter shall be determined in accordance with the following
paragraphs.
2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an
earlier or later treaty, the provisions of that other treaty prevail.
3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not
terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its
provisions are compatible with those of the later treaty.
4. When the parties to the later treaty do not include all the parties to the earlier one:
a. as between States Parties to both treaties the same rule applies as in paragraph 3;
b. as between a State party to both treaties and a State party to only one of the treaties, the treaty to which
both States are parties governs their mutual rights and obligations.
5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the
operation of a treaty under article 60 or to any question of responsibility which may arise for a State from
the conclusion or application of a treaty the provisions of which are incompatible with its obligations
towards another State under another treaty.

SECTION 3 INTERPRETATION OF TREATIES

Article 31 General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,
including its preamble and annexes:
a. any agreement relating to the treaty which was made between all the parties in connection with the
conclusion of the treaty;
b. any instrument which was made by one or more parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
a. any subsequent agreement between the parties regarding the interpretation of the treaty or the application
of its provisions;
b. any subsequent practice in the application of the treaty which establishes the agreement of the parties
regarding its interpretation;
c. any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32 Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty
and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of
article 31, or to determine the meaning when the interpretation according to article 31:
a. leaves the meaning ambiguous or obscure; or
b. leads to a result which is manifestly absurd or unreasonable.

Article 33 Interpretation of treaties authenticated in two or more languages

1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each
language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall
prevail.
2. A version of the treaty in a language other than one of those in which the text was authenticated shall be
considered an authentic text only if the treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each authentic text.
4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the
authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not
remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty,
shall be adopted.

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SECTION 4 TREATIES AND THIRD STATES

Article 34 General rule regarding third States

A treaty does not create either obligations or rights for a third State without its consent.

Article 35 Treaties providing for obligations for third States

An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the
provision to be the means of establishing the obligation and the third State expressly accepts that obligation
in writing.

Article 36 Treaties providing for rights for third States

1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision
to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and
the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless
the treaty otherwise provides.
2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its
exercise provided for in the treaty or established in conformity with the treaty.

Article 37 Revocation or modification of obligations or rights of third States

1. When an obligation has arisen for a third State in conformity with article 35, the obligation may be
revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is
established that they had otherwise agreed.
2. When a right has arisen for a third State in conformity with article 36, the right may not be revoked or
modified by the parties if it is established that the right was intended not to be revocable or subject to
modification without the consent of the third State.

Article 38 Rules in a treaty becoming binding on third States through international custom
Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State
as a customary rule of international law, recognized as such.

PART IV AMENDMENT AND MODIFICATION OF TREATIES

Article 39 General rule regarding the amendment of treaties

A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an
agreement except insofar as the treaty may otherwise provide.

Article 40 Amendment of multilateral treaties

1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the
following paragraphs.
2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the
contracting States, each one of which shall have the right to take part in:
a. the decision as to the action to be taken in regard to such proposal;
b. the negotiation and conclusion of any agreement for the amendment of the treaty.
3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as
amended.
4. The amending agreement does not bind any State already a party to the treaty which does not become a
party to the amending agreement; article 30, paragraph 4 (b), applies in relation to such State.
5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall,
failing an expression of a different intention by that State:
a. be considered as a party to the treaty as amended; and
b. be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the
amending agreement.

Article 41 Agreements to modify multilateral treaties between certain of the parties only
1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as
between themselves alone if:
a. the possibility of such a modification is provided for by the treaty; or
b. the modification in question is not prohibited by the treaty and:

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i. does not affect the enjoyment by the other parties of their rights under the treaty or the performance of
their obligations;
ii. does not relate to a provision, derogation from which is incompatible with the effective execution of the
object and purpose of the treaty as a whole.
2. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall
notify the other parties of their intention to conclude the agreement and of the modification to the treaty for
which it provides.

PART V INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF

TREATIES

SECTION 1 GENERAL PROVISIONS

Article 42 Validity and continuance in force of treaties

1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only
through the application of the present Convention.
2. The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result
of the application of the provisions of the treaty or of the present Convention. The same rule applies to
suspension of the operation of a treaty.

Article 43 Obligations imposed by international law independently of a treaty

The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension
of its operation, as a result of the application of the present Convention or of the provisions of the treaty,
shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it
would be subject under international law independently of the treaty.

Article 44 Separability of treaty provisions

1. A right of a party, provided for in a treaty or arising under article 56, to denounce, withdraw from or
suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty
otherwise provides or the parties otherwise agree.
2. A ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty
recognized in the present Convention may be invoked only with respect to the whole treaty except as
provided in the following paragraphs or in article 60.
3. If the ground relates solely to particular clauses, it may be invoked only with respect to those clauses
where:
a. the said clauses are separable from the remainder of the treaty with regard to their application;
b. it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential
basis of the consent of the other party or parties to be bound by the treaty as a whole; and
c. continued performance of the remainder of the treaty would not be unjust.
4. In cases falling under articles 49 and 50, the State entitled to invoke the fraud or corruption may do so
with respect either to the whole treaty or, subject to paragraph 3, to the particular clauses alone.
5. In cases falling under articles 51, 52 and 53, no separation of the provisions of the treaty is permitted.

Article 45 Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or
suspending the operation of a treaty
A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the
operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts:
a. it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the
case may be; or
b. it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its
maintenance in force or in operation, as the case may be.

SECTION 2 INVALIDITY OF TREATIES

Article 46 Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of
a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless
that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in
accordance with normal practice and in good faith.

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Article 47 Specific restrictions on authority to express the consent of a State
If the authority of a representative to express the consent of a State to be bound by a particular treaty has
been made subject to a specific restriction, his omission to observe that restriction may not be invoked as
invalidating the consent expressed by him unless the restriction was notified to the other negotiating States
prior to his expressing such consent.

Article 48 Error
1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error
relates to a fact or situation which was assumed by that State to exist at the time when the treaty was
concluded and formed an essential basis of its consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the
circumstances were such as to put that State on notice of a possible error.
3. An error relating only to the wording of the text of a treaty does not affect its validity; article 79 then
applies.

Article 49 Fraud
If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the
State may invoke the fraud as invalidating its consent to be bound by the treaty.

Article 50 Corruption of a representative of a State

If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its
representative directly or indirectly by another negotiating State, the State may invoke such corruption as
invalidating its consent to be bound by the treaty.

Article 51 Coercion of a representative of a State

The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its
representative through acts or threats directed against him shall be without any legal effect.

Article 52 Coercion of a State by the threat or use of force

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles
of international law embodied in the Charter of the United Nations.

Article 53 Treaties conflicting with a peremptory norm of general international law (“jus cogens”)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international
law. For the purposes of the present Convention, a peremptory norm of general international law is a norm
accepted and recognized by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general international law
having the same character.

SECTION 3 TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES

Article 54 Termination of or withdrawal from a treaty under its provisions or by consent of the
parties
The termination of a treaty or the withdrawal of a party may take place:
a. in conformity with the provisions of the treaty; or
b. at any time by consent of all the parties after consultation with the other contracting States.

Article 55 Reduction of the parties to a multilateral treaty below the number necessary for its entry
into force
Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that
the number of the parties falls below the number necessary for its entry into force.

Article 56 Denunciation of or withdrawal from a treaty containing no provision regarding

termination, denunciation or withdrawal
1. A treaty which contains no provision regarding its termination and which does not provide for
denunciation or withdrawal is not subject to denunciation or withdrawal unless:
a. it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
b. a right of denunciation or withdrawal may be implied by the nature of the treaty.

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2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a
treaty under paragraph 1.

Article 57 Suspension of the operation of a treaty under its provisions or by consent of the parties
The operation of a treaty in regard to all the parties or to a particular party may be suspended:
a. in conformity with the provisions of the treaty; or
b. at any time by consent of all the parties after consultation with the other contracting States.

Article 58 Suspension of the operation of a multilateral treaty by agreement between certain of the
parties only
1. Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of
provisions of the treaty, temporarily and as between themselves alone, if:
a. the possibility of such a suspension is provided for by the treaty; or
b. the suspension in question is not prohibited by the treaty and:
i. does not affect the enjoyment by the other parties of their rights under the treaty or the performance of
their obligations;
ii. is not incompatible with the object and purpose of the treaty.
2. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall
notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the
operation of which they intend to suspend.

Article 59 Termination or suspension of the operation of a treaty implied by conclusion of a later

treaty
1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same
subject matter and:
a. it appears from the later treaty or is otherwise established that the parties intended that the matter should
be governed by that treaty; or
b. the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties
are not capable of being applied at the same time.
2. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or
is otherwise established that such was the intention of the parties.

Article 60 Termination or suspension of the operation of a treaty as a consequence of its breach

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a
ground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
a. the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to
terminate it either:
i. in the relations between themselves and the defaulting State; or
ii. as between all the parties;
b. a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty
in whole or in part in the relations between itself and the defaulting State;
c. any party other than the defaulting State to invoke the breach as a ground for suspending the operation of
the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of
its provisions by one party radically changes the position of every party with respect to the further
performance of its obligations under the treaty.
3. A material breach of a treaty, for the purposes of this article, consists in:
a. a repudiation of the treaty not sanctioned by the present Convention; or
b. the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a
breach.
5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in
treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against
persons protected by such treaties.

Article 61 Supervening impossibility of performance

1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing
from it if the impossibility results from the permanent disappearance or destruction of an object
indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a
ground for suspending the operation of the treaty.

12
2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing
from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either
of an obligation under the treaty or of any other international obligation owed to any other party to the
treaty.

Article 62 Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of
the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for
terminating or withdrawing from the treaty unless:
a. the existence of those circumstances constituted an essential basis of the consent of the parties to be
bound by the treaty; and
b. the effect of the change is radically to transform the extent of obligations still to be performed under the
treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing
from a treaty:
a. if the treaty establishes a boundary; or
b. if the fundamental change is the result of a breach by the party invoking it either of an obligation under
the treaty or of any other international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a
ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for
suspending the operation of the treaty.

Article 63 Severance of diplomatic or consular relations

The severance of diplomatic or consular relations between parties to a treaty does not affect the legal
relations established between them by the treaty except insofar as the existence of diplomatic or consular
relations is indispensable for the application of the treaty.

Article 64 Emergence of a new peremptory norm of general international law (“jus cogens”)
If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with
that norm becomes void and terminates.

SECTION 4 PROCEDURE

Article 65 Procedure to be followed with respect to invalidity, termination, withdrawal from or

suspension of the operation of a treaty
1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be
bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or
suspending its operation, must notify the other parties of its claim. The notification shall indicate the
measure proposed to be taken with respect to the treaty and the reasons therefor.
2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three
months after the receipt of the notification, no party has raised any objection, the party making the
notification may carry out in the manner provided in article 67 the measure which it has proposed.
3. If, however, objection has been raised by any other party, the parties shall seek a solution through the
means indicated in Article 33 of the Charter of the United Nations.
4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any
provisions in force binding the parties with regard to the settlement of disputes.
5. Without prejudice to article 45, the fact that a State has not previously made the notification prescribed in
paragraph 1 shall not prevent it from making such notification in answer to another party claiming
performance of the treaty or alleging its violation.

Article 66 Procedures for judicial settlement, arbitration and conciliation

If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the
date on which the objection was raised, the following procedures shall be followed:
a. any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may,
by a written application, submit it to the International Court of Justice for a decision unless the parties by
common consent agree to submit the dispute to arbitration;
b. any one of the parties to a dispute concerning the application or the interpretation of any of the other
articles in part V of the present Convention may set in motion the procedure specified in the Annex to the
Convention by submitting a request to that effect to the Secretary-General of the United Nations.

13
Article 67 Instruments for declaring invalid, terminating, withdrawing from or suspending the
operation of a treaty
1. The notification provided for under article 65, paragraph 1, must be made in writing.
2. Any act of declaring invalid, terminating, withdrawing from or suspending the operation of a treaty
pursuant to the provisions of the treaty or of paragraphs 2 or 3 of article 65 shall be carried out through an
instrument communicated to the other parties. If the instrument 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.
Article 68 Revocation of notifications and instruments provided for in articles 65 and 67
A notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes
effect.

SECTION 5 CONSEQUENCES OF THE INVALIDITY, TERMINATION OR SUSPENSION OF

THE OPERATION OF A TREATY

Article 69 Consequences of the invalidity of a treaty

1. A treaty the invalidity of which is established under the present Convention is void. The provisions of a
void treaty have no legal force.
2. If acts have nevertheless been performed in reliance on such a treaty:
a. each party may require any other party to establish as far as possible in their mutual relations the position
that would have existed if the acts had not been performed;
b. acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only
of the invalidity of the treaty.
3. In cases falling under article 49, 50, 51 or 52, paragraph 2 does not apply with respect to the party to
which the fraud, the act of corruption or the coercion is imputable.
4. In the case of the invalidity of a particular State’s consent to be bound by a multilateral treaty, the
foregoing rules apply in the relations between that State and the parties to the treaty.

Article 70 Consequences of the termination of a treaty

1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its
provisions or in accordance with the present Convention:
a. releases the parties from any obligation further to perform the treaty;
b. does not affect any right, obligation or legal situation of the parties created through the execution of the
treaty prior to its termination.
2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between
that State and each of the other parties to the treaty from the date when such denunciation or withdrawal
takes effect.

Article 71 Consequences of the invalidity of a treaty which conflicts with a peremptory norm of
general international law
1. In the case of a treaty which is void under article 53 the parties shall:
a. eliminate as far as possible the consequences of any act performed in reliance on any provision which
conflicts with the peremptory norm of general international law; and
b. bring their mutual relations into conformity with the peremptory norm of general international law.
2. In the case of a treaty which becomes void and terminates under article 64, the termination of the treaty:
a. releases the parties from any obligation further to perform the treaty;
b. does not affect any right, obligation or legal situation of the parties created through the execution of the
treaty prior to its termination, provided that those rights, obligations or situations may thereafter be
maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory
norm of general international law.

Article 72 Consequences of the suspension of the operation of a treaty

1. Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation of a
treaty under its provisions or in accordance with the present Convention:
a. releases the parties between which the operation of the treaty is suspended from the obligation to perform
the treaty in their mutual relations during the period of the suspension;
b. does not otherwise affect the legal relations between the parties established by the treaty.
2. During the period of the suspension the parties shall refrain from acts tending to obstruct the resumption
of the operation of the treaty.

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PART VI MISCELLANEOUS PROVISIONS

Article 73 Cases of State succession, State responsibility and outbreak of hostilities

The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty
from a succession of States or from the international responsibility of a State or from the outbreak of
hostilities between States.

Article 74 Diplomatic and consular relations and the conclusion of treaties

The severance or absence of diplomatic or consular relations between two or more States does not prevent
the conclusion of treaties between those States. The conclusion of a treaty does not in itself affect the
situation in regard to diplomatic or consular relations.

Article 75 Case of an aggressor State

The provisions of the present Convention are without prejudice to any obligation in relation to a treaty
which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of
the United Nations with reference to that State’s aggression.

PART VII DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION

Article 76 Depositaries of treaties

1. The designation of the depositary of a treaty may be made by the negotiating States, either in the treaty
itself or in some other manner. The depositary may be one or more States, an international organization or
the chief administrative officer of the organization.
2. The functions of the depositary of a treaty are international in character and the depositary is under an
obligation to act impartially in their performance. In particular, the fact that a treaty has not entered into
force between certain of the parties or that a difference has appeared between a State and a depositary with
regard to the performance of the latter’s functions shall not affect that obligation.

Article 77 Functions of depositaries

1. The functions of a depositary, unless otherwise provided in the treaty or agreed by the contracting States,
comprise in particular:
a. keeping custody of the original text of the treaty and of any full powers delivered to the depositary;
b. preparing certified copies of the original text and preparing any further text of the treaty in such
additional languages as may be required by the treaty and transmitting them to the parties and to the States
entitled to become parties to the treaty;
c. receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications
and communications relating to it;
d. examining whether the signature or any instrument, notification or communication relating to the treaty is
in due and proper form and, if need be, bringing the matter to the attention of the State in question;
e. informing the parties and the States entitled to become parties to the treaty of acts, notifications and
communications relating to the treaty;
f. informing the States entitled to become parties to the treaty when the number of signatures or of
instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty
has been received or deposited;
g. registering the treaty with the Secretariat of the United Nations;
h. performing the functions specified in other provisions of the present Convention.
2. In the event of any difference appearing between a State and the depositary as to the performance of the
latter’s functions, the depositary shall bring the question to the attention of the signatory States and the
contracting States or, where appropriate, of the competent organ of the international organization
concerned.

Article 78 Notifications and communications

Except as the treaty or the present Convention otherwise provide, any notification or communication to be
made by any State under the present Convention shall:
a. if there is no depositary, be transmitted direct to the States for which it is intended, or if there is a
depositary, to the latter;
b. be considered as having been made by the State in question only upon its receipt by the State to which it
was transmitted or, as the case may be, upon its receipt by the depositary;
c. if transmitted to a depositary, be considered as received by the State for which it was intended only when
the latter State has been informed by the depositary in accordance with article 77, paragraph 1 (e).

15
Article 79 Correction of errors in texts or in certified copies of treaties
1. Where, after the authentication of the text of a treaty, the signatory States and the contracting States are
agreed that it contains an error, the error shall, unless they decide upon some other means of correction, be
corrected:
a. by having the appropriate correction made in the text and causing the correction to be initialled by duly
authorized representatives;
b. by executing or exchanging an instrument or instruments setting out the correction which it has been
agreed to make; or
c. by executing a corrected text of the whole treaty by the same procedure as in the case of the original text.
2. Where the treaty is one for which there is a depositary, the latter shall notify the signatory States and the
contracting States of the error and of the proposal to correct it and shall specify an appropriate time-limit
within which objection to the proposed correction may be raised. If, on the expiry of the time-limit:
a. no objection has been raised, the depositary shall make and initial the correction in the text and shall
execute a procès-verbal of the rectification of the text and communicate a copy of it to the parties and to the
States entitled to become parties to the treaty;
b. an objection has been raised, the depositary shall communicate the objection to the signatory States and
to the contracting States.
3. The rules in paragraphs I and 2 apply also where the text has been authenticated in two or more
languages and it appears that there is a lack of concordance which the signatory States and the contracting
States agree should be corrected.
4. The corrected text replaces the defective text ab initio, unless the signatory States and the contracting
States otherwise decide.
5. The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the
United Nations.
6. Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procès-verbal
specifying the rectification and communicate a copy of it to the signatory States and to the contracting
States.

Article 80 Registration and publication of treaties

1. Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for
registration or filing and recording, as the case may be, and for publication.
2. The designation of a depositary shall constitute authorization for it to perform the acts specified in the
preceding paragraph.

PART VIII FINAL PROVISIONS

Article 81 Signature
The present Convention shall be open for signature by all States Members of the United Nations or of any
of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the
International Court of Justice, and by any other State invited by the General Assembly of the United
Nations to become a party to the Convention, as follows: until 30 November 1969, at the Federal Ministry
for Foreign Affairs of the Republic of Austria, and subsequently, until 30 April 1970, at United Nations
Headquarters, New York.

Article 82 Ratification
The present Convention is subject to ratification. The instruments of ratification shall be deposited with the
Secretary-General of the United Nations.

Article 83 Accession
The present Convention shall remain open for accession by any State belonging to any of the categories
mentioned in article 81. The instruments of accession shall be deposited with the Secretary-General of the
United Nations.

Article 84 Entry into force

1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the
thirty-fifth instrument of ratification or accession.
2. For each State ratifying or acceding to the Convention after the deposit of the thirty-fifth 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.

16
Article 85 Authentic texts
The original of the present Convention, of which the 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 May, one thousand nine hundred and sixty-nine.

ANNEX
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 66, 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 last of their own appointments,
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 treaty 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.

17
 DRAFT CONCLUSIONS ON IDENTIFICATION
OF CUSTOMARY INTERNATIONAL LAW 2018

Adopted by the International Law Commission at its seventieth session, in 2018, and submitted to the
General Assembly as a part of the Commission’s report covering the work of that session (A/73/10, para.
65). The report will appear in Yearbook of the International Law Commission, 2018, vol. II, Part Two.

Identification of customary international law

Part One Introduction

Conclusion 1 Scope
The present draft conclusions concern the way in which the existence and content of rules of customary
international law are to be determined.

Part Two Basic approach

Conclusion 2 Two constituent elements

To determine the existence and content of a rule of customary international law, it is necessary to ascertain
whether there is a general practice that is accepted as law (opinio juris).

Conclusion 3 Assessment of evidence for the two constituent elements

1. In assessing evidence for the purpose of ascertaining whether there is a general practice and whether
that practice is accepted as law (opinio juris), regard must be had to the overall context, the nature of the
rule, and the particular circumstances in which the evidence in question is to be found.
2. Each of the two constituent elements is to be separately ascertained. This requires an assessment of
evidence for each element.

Part Three A general practice

Conclusion 4 Requirement of practice

1. The requirement of a general practice, as a constituent element of customary international law, refers
primarily to the practice of States that contributes to the formation, or expression, of rules of customary
international law.
2. In certain cases, the practice of international organizations also contributes to the formation, or
expression, of rules of customary international law.
3. Conduct of other actors is not practice that contributes to the formation, or expression, of rules of
customary international law, but may be relevant when assessing the practice referred to in paragraphs 1
and 2.

Conclusion 5 Conduct of the State as State practice

State practice consists of conduct of the State, whether in the exercise of its executive, legislative, judicial
or other functions.

Conclusion 6 Forms of practice

1. Practice may take a wide range of forms. It includes both physical and verbal acts. It may, under certain
circumstances, include inaction.
2. Forms of State practice include, but are not limited to: diplomatic acts and correspondence; conduct in
connection with resolutions adopted by an international organization or at an intergovernmental conference;
conduct in connection with treaties; executive conduct, including operational conduct “on the ground”;
legislative and administrative acts; and decisions of national courts.
3. There is no predetermined hierarchy among the various forms of practice.

Conclusion 7 Assessing a State’s practice

1. Account is to be taken of all available practice of a particular State, which is to be assessed as a whole.
2. Where the practice of a particular State varies, the weight to be given to that practice may, depending
on the circumstances, be reduced.
Conclusion 8 The practice must be general

18
1. The relevant practice must be general, meaning that it must be sufficiently widespread and
representative, as well as consistent.
2. Provided that the practice is general, no particular duration is required.

Part Four Accepted as law (opinio juris)

Conclusion 9 Requirement of acceptance as law (opinio juris)

1. The requirement, as a constituent element of customary international law, that the general practice be
accepted as law (opinio juris) means that the practice in question must be undertaken with a sense of legal
right or obligation.
2. A general practice that is accepted as law (opinio juris) is to be distinguished from mere usage or habit.

Conclusion 10 Forms of evidence of acceptance as law (opinio juris)

. Evidence of acceptance as law (opinio juris) may take a wide range of forms.
2. Forms of evidence of acceptance as law (opinio juris) include, but are not limited to: public statements
made on behalf of States; official publications; government legal opinions; diplomatic correspondence;
decisions of national courts; treaty provisions; and conduct in connection with resolutions adopted by an
international organization or at an intergovernmental conference.
3. Failure to react over time to a practice may serve as evidence of acceptance as law (opinio juris),
provided that States were in a position to react and the circumstances called for some reaction.

Part Five Significance of certain materials for the identification of customary international law

Conclusion 11 Treaties
1. A rule set forth in a treaty may reflect a rule of customary international law if it is established that the
treaty rule:
(a) codified a rule of customary international law existing at the time when the treaty was concluded;
(b) has led to the crystallization of a rule of customary international law that had started to emerge prior to
the conclusion of the treaty; or
(c) has given rise to a general practice that is accepted as law (opinio juris), thus generating a new rule of
customary international law.
2. The fact that a rule is set forth in a number of treaties may, but does not necessarily, indicate that the
treaty rule reflects a rule of customary international law.

Conclusion 12 Resolutions of international organizations and intergovernmental conferences

1. A resolution adopted by an international organization or at an intergovernmental conference cannot, of
itself, create a rule of customary international law.
2. A resolution adopted by an international organization or at an intergovernmental conference may
provide evidence for determining the existence and content of a rule of customary international law, or
contribute to its development.
3. A provision in a resolution adopted by an international organization or at an intergovernmental
conference may reflect a rule of customary international law if it is established that the provision
corresponds to a general practice that is accepted as law (opinio juris).

Conclusion 13 Decisions of courts and tribunals

1. Decisions of international courts and tribunals, in particular of the International Court of Justice,
concerning the existence and content of rules of customary international law are a subsidiary means for the
determination of such rules.
2. Regard may be had, as appropriate, to decisions of national courts concerning the existence and content
of rules of customary international law, as a subsidiary means for the determination of such rules.

Conclusion 14 Teachings
Teachings of the most highly qualified publicists of the various nations may serve as a subsidiary means for
the determination of rules of customary international law.

Part Six Persistent objector

Conclusion 15 Persistent objector

1. Where a State has objected to a rule of customary international law while that rule was in the process of
formation, the rule is not opposable to the State concerned for so long as it maintains its objection.

19
2. The objection must be clearly expressed, made known to other States, and maintained persistently.
3. The present draft conclusion is without prejudice to any question concerning peremptory norms of
general international law (jus cogens).

Part Seven Particular customary international law

Conclusion 16 Particular customary international law

1. A rule of particular customary international law, whether regional, local or other, is a rule of customary
international law that applies only among a limited number of States.
2. To determine the existence and content of a rule of particular customary international law, it is
necessary to ascertain whether there is a general practice among the States concerned that is accepted by
them as law (opinio juris) among themselves.

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Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations

The International Law Commission,

Noting that States may find themselves bound by their unilateral behaviour on the international plane,

Noting that behaviours capable of legally binding States may take the form of formal declarations or mere
informal conduct including, in certain situations, silence, on which other States may reasonably rely,

Noting also that the question whether a unilateral behaviour by the State binds it in a given situation
depends on the circumstances of the case,

Noting also that in practice, it is often difficult to establish whether the legal effects stemming from the
unilateral behaviour of a State are the consequence of the intent that it has expressed or depend on the
expectations that its conduct has raised among other subjects of international law,

Adopts the following Guiding Principles which relate only to unilateral acts stricto sensu, i.e. those taking
the form of formal declarations formulated by a State with the intent to produce obligations under
international law,

1. Declarations publicly made and manifesting the will to be bound may have the effect of creating legal
obligations. When the conditions for this are met, the binding character of such declarations is based on
good faith; States concerned may then take them into consideration and rely on them; such States are
entitled to require that such obligations be respected;

2. Any State possesses capacity to undertake legal obligations through unilateral declarations;

3. To determine the legal effects of such declarations, it is necessary to take account of their content, of all
the factual circumstances in which they were made, and of the reactions to which they gave rise;

4. A unilateral declaration binds the State internationally only if it is made by an authority vested with the
power to do so. By virtue of their functions, heads of State, heads of Government and ministers for foreign
affairs are competent to formulate such declarations. Other persons representing the State in specified areas
may be authorized to bind it, through their declarations, in areas falling within their competence;

5. Unilateral declarations may be formulated orally or in writing;

6. Unilateral declarations may be addressed to the international community as a whole, to one or several
States or to other entities;

7. A unilateral declaration entails obligations for the formulating State only if it is stated in clear and
specific terms. In the case of doubt as to the scope of the obligations resulting from such a declaration, such
obligations must be interpreted in a restrictive manner. In interpreting the content of such obligations,
weight shall be given first and foremost to the text of the declaration, together with the context and the
circumstances in which it was formulated;

8. A unilateral declaration which is in conflict with a peremptory norm of general international law is
void;

9. No obligation may result for other States from the unilateral declaration of a State. However, the other
State or States concerned may incur obligations in relation to such a unilateral declaration to the extent that
they clearly accepted such a declaration;

10. A unilateral declaration that has created legal obligations for the State making the declaration cannot be
revoked arbitrarily. In assessing whether a revocation would be arbitrary, consideration should be given to:
any specific terms of the declaration relating to revocation;
the extent to which those to whom the obligations are owed have relied on such obligations;
the extent to which there has been a fundamental change in the circumstances.

21
 CONCLUSIONS OF THE WORK OF THE STUDY GROUP
ON THE FRAGMENTATION OF INTERNATIONAL LAW:
DIFFICULTIES ARISING FROM THE
DIVERSIFICATION AND EXPANSION OF INTERNATIONAL LAW

1. General

(1) International law as a legal system. International law is a legal system. Its rules and principles (i.e. its
norms) act in relation to and should be interpreted against the background of other rules and principles.
As a legal system, international law is not a random collection of such norms. There are meaningful
relationships between them. Norms may thus exist at higher and lower hierarchical levels, their
formulation may involve greater or lesser generality and specificity and their validity may date back to
earlier or later moments in time.
(2) In applying international law, it is often necessary to determine the precise relationship between two or
more rules and principles that are both valid and applicable in respect of a situation. 1 For that purpose
the relevant relationships fall into two general types:
Relationships of interpretation. This is the case where one norm assists in the interpretation of another. A
norm may assist in the interpretation of another norm for example as an application, clarification,
updating, or modification of the latter. In such situation, both norms are applied in conjunction.
Relationships of conflict. This is the case where two norms that are both valid and applicable point to
incompatible decisions so that a choice must be made between them. The basic rules concerning the
resolution of normative conflicts are to be found in the VCLT.
(3) The VCLT. When seeking to determine the relationship of two or more norms to each other, the norms
should be interpreted in accordance with or analogously to the VCLT and especially the provisions in
its articles 31-33 having to do with the interpretation of treaties.
(4) The principle of harmonization. It is a generally accepted principle that when several norms bear on a
single issue they should, to the extent possible, be interpreted so as to give rise to a single set of
compatible obligations.

2. The maxim lex specialis derogat legi generali

(5) General principle. The maxim lex specialis derogat legi generali is a generally accepted technique of
interpretation and conflict resolution in international law. It suggests that whenever two or more norms
deal with the same subject matter, priority should be given to the norm that is more specific. The
principle may be applicable in several contexts: between provisions within a single treaty, between
provisions within two or more treaties, between a treaty and a non-treaty standard, as well as between
two non-treaty standards.2 The source of the norm (whether treaty, custom or general principle of law)
is not decisive for the determination of the more specific standard. However, in practice treaties often
act as lex specialis by reference to the relevant customary law and general principles.3

1
That two norms are valid in regard to a situation means that they each cover the facts of which the situation
consists. That two norms are applicable in a situation means that they have binding force in respect to the legal
subjects finding themselves in the relevant situation.
2
For application in relation to provisions within a single treaty, see Beagle Channel Arbitration
(Argentina v. Chile) ILR vol. 52 (1979) p. 141, paras. 36, 38 and 39; Case C-96/00, Rudolf Gabriel, Judgment of
11 July 2002, ECR (2002) I-06367, pp. 6398-6399, paras. 35-36 and p. 6404, para. 59; Brannigan and McBride v.
the United Kingdom, Judgment of 28 May 1993, ECHR Series A (1993) No. 258, p. 57, para. 76; De Jong, Baljet
and van den Brink v. the Netherlands, Judgment of 22 May 1984, ECHR Series A (1984) No. 77, p. 27, para. 60;
Murray v. the United Kingdom, Judgment of 28 October 1994, ECHR Series A (1994) No. 300, p. 37, para. 98 and
Nikolova v. Bulgaria, Judgment of 25 March 1999, ECHR 1999-II, p. 25, para. 69. For application between
different instruments, see Mavrommatis Palestine Concessions case, P.C.I.J. Series A, No. 2 (1924) p. 31. For
application between a treaty and non-treaty standards, INA Corporation v. Government of the Islamic Republic of
Iran, Iran-US C.T.R. vol. 8, 1985-I, p. 378. For application between particular and general custom, see Case
concerning the Right of Passage over Indian Territory (Portugal v. India) (Merits) I.C.J. Reports 1960, p. 6 at p.
44. The Court said: “Where therefore the Court finds a practice clearly established between two States which was
accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that
practice for the purpose of determining their specific rights and obligations. Such a particular practice must prevail
over any general rules.”
3
In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
(Merits) I.C.J. Reports 1986, p. 14 at p. 137, para. 274, the Court said: “In general, treaty rules being lex specialis,
it would not be appropriate that a State should bring a claim based on a customary-law rule if it has by treaty
already provided means for settlement of a such a claim.”

22
(6) Contextual appreciation. The relationship between the lex specialis maxim and other norms of
interpretation or conflict solution cannot be determined in a general way. Which consideration should
be predominant - i.e. whether it is the speciality or the time of emergence of the norm - should be
decided contextually.
(7) Rationale of the principle. That special law has priority over general law is justified by the fact that
such special law, being more concrete, often takes better account of the particular features of the
context in which it is to be applied than any applicable general law. Its application may also often
create a more equitable result and it may often better reflect the intent of the legal subjects.
(8) Functions of lex specialis. Most of international law is dispositive. This means that special law may
be used to apply, clarify, update or modify as well as set aside general law.
(9) The effect of lex specialis on general law. The application of the special law does not normally
extinguish the relevant general law.4 That general law will remain valid and applicable and will, in
accordance with the principle of harmonization under conclusion (4) above, continue to give direction
for the interpretation and application of the relevant special law and will become fully applicable in
situations not provided for by the latter.5
(10) Particular types of general law. Certain types of general law 6 may not, however, be derogated from by
special law. Jus cogens is expressly non-derogable as set out in conclusions (32), (33), (40) and (41),
below.7 Moreover, there are other considerations that may provide a reason for concluding that a
general law would prevail in which case the lex specialis presumption may not apply. These include
the following:
Whether such prevalence may be inferred from the form or the nature of the general law or intent of the
parties, wherever applicable;
Whether the application of the special law might frustrate the purpose of the general law;
Whether third party beneficiaries may be negatively affected by the special law; and
Whether the balance of rights and obligations, established in the general law would be negatively affected
by the special law.

3. Special (self-contained) regimes

(11) Special (“self-contained”) regimes as lex specialis. A group of rules and principles concerned with a
particular subject matter may form a special regime (“Self-contained regime”) and be applicable as lex
specialis. Such special regimes often have their own institutions to administer the relevant rules.
(12) Three types of special regime may be distinguished:
Sometimes violation of a particular group of (primary) rules is accompanied by a special set of (secondary)
rules concerning breach and reactions to breach. This is the main case provided for under article 55 of
the articles on Responsibility of States for internationally wrongful acts.8
4
Thus, in the Nicaragua case, ibid. p. 14 at p. 95 para. 179 the Court noted: “It will … be clear that customary
international law continues to exist and to apply, separately from international treaty law, even where the two
categories of law have an identical content.”
5
In the Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, I.C.J. Reports 1996, p. 240, para. 25,
the Court described the relationship between human rights law and the laws of armed conflict in the following
way: “… the protection of the International Covenant of Civil and Political Rights does not cease in times of war,
except by operation of article 4 of the Covenant … The test of what is an arbitrary deprivation of life, however,
then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is
designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary deprivation of life contrary to article 6 of the Covenant, can
only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the
Covenant itself”.
6
There is no accepted definition of “general international law”. For the purposes of these conclusions, however, it
is sufficient to define what is “general” by reference to its logical counterpart, namely what is “special”. In
practice, lawyers are usually able to operate this distinction by reference to the context in which it appears.
7
In the Dispute Concerning Access to Information under Article 9 of the OSPAR Convention, (Ireland v.
United Kingdom) (Final Award, 2 July 2003) ILR vol. 126 (2005) p. 364, para. 84, the tribunal observed: “[e]ven
then, [the OSPAR Convention] must defer to the relevant jus cogens with which the parties’ lex specialis may be
inconsistent.”
8
Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10), para. 76. In the
Case concerning the United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran)
I.C.J. Reports 1980 at p. 40, para. 86, the Court said: “The rules of diplomatic law, in short, constitute a
self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities,

23
Sometimes, however, a special regime is formed by a set of special rules, including rights and obligations,
relating to a special subject matter. Such rules may concern a geographical area (e.g. a treaty on the
protection of a particular river) or some substantive matter (e.g. a treaty on the regulation of the uses of
a particular weapon). Such a special regime may emerge on the basis of a single treaty, several treaties,
or treaty and treaties plus non-treaty developments (subsequent practice or customary law). 9
Finally, sometimes all the rules and principles that regulate a certain problem area are collected together so
as to express a “special regime”. Expressions such as “law of the sea”, “humanitarian law”, “human
rights law”, “environmental law” and “trade law”, etc. give expression to some such regimes. For
interpretative purposes, such regimes may often be considered in their entirety.
(13) Effect of the “speciality” of a regime. The significance of a special regime often lies in the way its
norms express a unified object and purpose. Thus, their interpretation and application should, to the
extent possible, reflect that object and purpose.
(14) The relationship between special regimes and general international law. A special regime may prevail
over general law under the same conditions as lex specialis generally (see conclusions (8) and (10)
above).
(15) The role of general law in special regimes: Gap-filling. The scope of special laws is by definition
narrower than that of general laws. It will thus frequently be the case that a matter not regulated by
special law will arise in the institutions charged to administer it. In such cases, the relevant general law
will apply.10
(16) The role of general law in special regimes: Failure of special regimes. Special regimes or the
institutions set up by them may fail. Failure might be inferred when the special laws have no
reasonable prospect of appropriately addressing the objectives for which they were enacted. It could be
manifested, for example, by the failure of the regime’s institutions to fulfil the purposes allotted to
them, persistent non-compliance by one or several of the parties, desuetude, withdrawal by parties
instrumental for the regime, among other causes. Whether a regime has “failed” in this sense,
however, would have to be assessed above all by an interpretation of its constitutional instruments. In
the event of failure, the relevant general law becomes applicable.

4. Article 31 (3) (c) VCLT

(17) Systemic integration. Article 31 (3) (c) VCLT provides one means within the framework of the VCLT,
through which relationships of interpretation (referred to in conclusion (2) above) may be applied. It
requires the interpreter of a treaty to take into account “any relevant rules of international law

privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by
members of the mission and specifies the means at the disposal of the receiving States to counter any such abuse.”
9
See Case of the S.S. “Wimbledon”, P.C.I.J. Series A, No. 1 (1923) pp. 23-4, noting that the provisions on the
Kiel Canal in the Treaty of Versailles of 1919: “… differ on more than one point from those to which other
internal navigable waterways of the [German] Empire are subjected … the Kiel Canal is open to the war vessels
and transit traffic of all nations at peace with Germany, whereas free access to the other German navigable
waterways … is limited to the Allied and Associated Powers alone … The provisions of the Kiel Canal are
therefore self-contained”.
10
Thus, in Bankovic v. Belgium and others, Decision of 12 December 2001, Admissibility, ECHR 2001-XII, p. 351,
para. 57, the European Court of Human Rights canvassed the relationship between the European Convention on
Human Rights and Fundamental Freedoms and general international law as follows: “the Court recalls that the
principles underlying the Convention cannot be interpreted and applied in a vacuum. The Court must also take
into account any relevant rules of international law when examining questions concerning its jurisdiction and,
consequently, determine State responsibility in conformity with the governing principles of international law,
although it must remain mindful of the Convention’s special character as a human rights treaty. The Convention
should be interpreted as far as possible in harmony with other principles of international law of which it forms
part”.
Similarly in Korea - Measures Affecting Government Procurement (19 January 2000) WT/DS163/R, para. 7.96, the
Appellate Body of the WTO noted the relationship between the WTO Covered agreements and general
international law as follows: “We take note that Article 3 (2) of the DSU requires that we seek within the context
of a particular dispute to clarify the existing provisions of the WTO agreements in accordance with customary
international law rules of interpretation of public international law. However, the relationship of the WTO
agreements to customary international law is broader than this. Customary international law applies generally to
the economic relations between WTO members. Such international law applies to the extent that the WTO treaty
agreements do not ‘contract out’ from it. To put it another way, to the extent that there is no conflict or
inconsistency, or an expression in a covered WTO agreement that applies differently, we are of the view that the
customary rules of international law apply to the WTO treaties and to the process of treaty formation under the
WTO.”

24
 applicable in relations between the parties”. The article gives expression to the objective of “systemic
integration” according to which, whatever their subject matter, treaties are a creation of the
international legal system and their operation is predicated upon that fact.
(18) Interpretation as integration in the system. Systemic integration governs all treaty interpretation, the
other relevant aspects of which are set out in the other paragraphs of articles 31-32 VCLT. These
paragraphs describe a process of legal reasoning, in which particular elements will have greater or less
relevance depending upon the nature of the treaty provisions in the context of interpretation. In many
cases, the issue of interpretation will be capable of resolution with the framework of the treaty itself.
Article 31 (3) (c) deals with the case where material sources external to the treaty are relevant in its
interpretation. These may include other treaties, customary rules or general principles of law. 11
(19) Application of systemic integration. Where a treaty functions in the context of other agreements, the
objective of systemic integration will apply as a presumption with both positive and negative aspects:
(a) The parties are taken to refer to customary international law and general principles of law for
all questions which the treaty does not itself resolve in express terms;12
(b) In entering into treaty obligations, the parties do not intend to act inconsistently with generally
recognized principles of international law.13
Of course, if any other result is indicated by ordinary methods of treaty interpretation that should be given
effect, unless the relevant principle were part of jus cogens.
(20) Application of custom and general principles of law. Customary international law and general
principles of law are of particular relevance to the interpretation of a treaty under article 31 (3) (c)
especially where:
(a) The treaty rule is unclear or open-textured;
(b) The terms used in the treaty have a recognized meaning in customary international law or
under general principles of law;
(c) The treaty is silent on the applicable law and it is necessary for the interpreter, applying the
presumption in conclusion (19) (a) above, to look for rules developed in another part of international
law to resolve the point.
(21) Application of other treaty rules. Article 31 (3) (c) also requires the interpreter to consider other treaty-
based rules so as to arrive at a consistent meaning. Such other rules are of particular relevance where
parties to the treaty under interpretation are also parties to the other treaty, where the treaty rule has
passed into or expresses customary international law or where they provide evidence of the common
understanding of the parties as to the object and purpose of the treaty under interpretation or as to the
meaning of a particular term.
(22) Inter-temporality. International law is a dynamic legal system. A treaty may convey whether in
applying article 31 (3) (c) the interpreter should refer only to rules of international law in force at the
time of the conclusion of the treaty or may also take into account subsequent changes in the law.
Moreover, the meaning of a treaty provision may also be affected by subsequent developments,
especially where there are subsequent developments in customary law and general principles of law. 14

11
In the Oil Platforms case (Iran v. United States of America) (Merits) I.C.J. Reports 2003, at para. 41, the Court
spoke of the relations between a bilateral treaty and general international law by reference to article 31 (3) (c)
as follows: “Moreover, under the general rules of treaty interpretation, as reflected in the 1969 Vienna Convention
on the Law of Treaties, interpretation must take into account ‘any relevant rules of international law applicable
in the relations between the parties’ (Article 31, paragraph 3 (c)). The Court cannot accept that Article XX,
paragraph 1 (d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of
international law … The application of the relevant rules of international law relating to this question thus forms
an integral part of the task of interpretation entrusted to the Court by … the 1955 Treaty.”
12
Georges Pinson case (France v. United Mexican States) Award of 13 April 1928, UNRIAA, vol. V, p. 422. It
was noted that parties are taken to refer to general principles of international law for questions which the treaty
does not itself resolve in express terms or in a different way.
13
In the Case concerning the Right of Passage over Indian Territory (Portugal v. India) (Preliminary Objections)
I.C.J. Reports 1957, p. 125 at p. 142, the Court stated: “It is a rule of interpretation that a text emanating from a
government must, in principle, be interpreted as producing and as intended to produce effects in accordance with
existing law and not in violation of it.”
14
The traditional rule was stated by Judge Huber in the Island of Palmas case (the Netherlands v. United States of
America) Award of 4 April 1928, UNRIAA, vol. II, p. 829, at p. 845, in the context of territorial claims: “… a
juridical fact must be appreciated in the light of the law contemporary with it, and not the law in force at the time
when a dispute in regard to it arises or fails to be settled … The same principle which subjects the act creative of a
right to the law in force at the time the right arises, demands that the existence of the right, in other words, its
continued manifestations, shall follow the conditions required by the evolution of law”.

25
(23) Open or evolving concepts. Rules of international law subsequent to the treaty to be interpreted may be
taken into account especially where the concepts used in the treaty are open or evolving. This is the
case, in particular, where: (a) the concept is one which implies taking into account subsequent
technical, economic or legal developments; 15 (b) the concept sets up an obligation for further
progressive development for the parties; or (c) the concept has a very general nature or is expressed in
such general terms that it must take into account changing circumstances. 16
5. Conflicts between successive norms

(24) Lex posterior derogat legi priori. According to article 30 VCLT, when all the parties to a treaty are
also parties to an earlier treaty on the same subject, and the earlier treaty is not suspended or
terminated, then it applies only to the extent its provisions are compatible with those of the later treaty.
This is an expression of the principle according to which “later law supersedes earlier law”.
(25) Limits of the “lex posterior” principle. The applicability of the lex posterior principle is, however,
limited. It cannot, for example, be automatically extended to the case where the parties to the
subsequent treaty are not identical to the parties of the earlier treaty. In such cases, as provided in
article 30 (4) VCLT, the State that is party to two incompatible treaties is bound vis-à-vis both of its
treaty parties separately. In case it cannot fulfil its obligations under both treaties, it risks being
responsible for the breach of one of them unless the concerned parties agree otherwise. In such case,
also article 60 VCLT may become applicable. The question which of the incompatible treaties should
be implemented and the breach of which should attract State responsibility cannot be answered by a

15
In the Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia) I.C.J. Reports 1997, p. 7 at
pp. 67-68, para. 112, the Court observed: “By inserting these evolving provisions in the Treaty, the parties
recognized the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt
to emerging norms of international law. By means of articles 15 and 19, new environmental norms can be
incorporated in the Joint Contractual Plan.”
In the Arbitration regarding the Iron Rhine (ÏJZEREN RIJN) Railway (Belgium v. Netherlands) of 24 May 2005, a
conceptual or generic term was not in issue but a new technical development relating to the operation and capacity
of a railway. Evolutive interpretation was used to ensure the effective application of the treaty in terms of its
object and purpose. The Tribunal observed in paragraphs 82 and 83: “The object and purpose of the 1839 Treaty
of Separation was to resolve the many difficult problems complicating a stable separation of Belgium and the
Netherlands: that of Article XII was to provide for transport links from Belgium to Germany, across a route
designated by the 1842 Boundary Treaty. This object was not for a fixed duration and its purpose was
‘commercial communication’. It necessarily follows, even in the absence of specific wording, that such works,
going beyond restoration to previous functionality, as might from time to time be necessary or desirable for
contemporary commerciality, would remain a concomitant of the right of transit that Belgium would be able to
request. That being so, the entirety of Article XII, with its careful balance of the rights and obligations of the
Parties, remains in principle applicable to the adaptation and modernisation requested by Belgium”, Text of award
available on >http://www.pca-cpa.org>. (last visited on 14 July 2006).
16
See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 at p. 31,
para. 53. The Court said that the concept of “sacred trust” was by definition evolutionary. “The parties to the
Covenant must consequently be deemed to have accepted [it] as such. That it is why, viewing the institutions
of 1919, the Court must take into consideration the changes which have occurred in the supervening half a century,
and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the
United Nations and by way of customary international law. Moreover, an international instrument has to be
interpreted and applied within the framework of the entire legal system prevailing at the time of interpretation.”
In the Case concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) I.C.J. Reports 1997, pp. 76-80, paras.
132-147, the ICJ noted that: “[T]he Court wishes to point out that newly developed norms of environmental law
are relevant for the implementation of the Treaty and that the parties could, by agreement, incorporate them … [in]
… the Treaty. These articles do not contain specific obligations of performance but require the parties, in carrying
out their obligations to ensure that the quality of water in the Danube is not impaired and that nature is protected,
to take new environmental norms into consideration when agreeing upon the means to be specified in the Joint
Contractual Plan …”.

26
 general rule.17 Conclusions (26)-(27) below lay out considerations that might then be taken into
account.
(26) The distinction between treaty provisions that belong to the same “regime” and provisions in different
“regimes”. The lex posterior principle is at its strongest in regard to conflicting or overlapping
provisions that are part of treaties that are institutionally linked or otherwise intended to advance
similar objectives (i.e. form part of the same regime). In case of conflicts or overlaps between treaties
in different regimes, the question of which of them is later in time would not necessarily express any
presumption of priority between them. Instead, States bound by the treaty obligations should try to
implement them as far as possible with the view of mutual accommodation and in accordance with the
principle of harmonization. However, the substantive rights of treaty parties or third party beneficiaries
should not be undermined.
(27) Particular types of treaties or treaty provisions. The lex posterior presumption may not apply where
the parties have intended otherwise, which may be inferred from the nature of the provisions or the
relevant instruments, or from their object and purpose. The limitations that apply in respect of the lex
specialis presumption in conclusion (10) may also be relevant with respect to the lex posterior.
(28) Settlement of disputes within and across regimes. Disputes between States involving conflicting treaty
provisions should be normally resolved by negotiation between parties to the relevant treaties.
However, when no negotiated solution is available, recourse ought to be had, where appropriate, to
other available means of dispute settlement. When the conflict concerns provisions within a single
regime (as defined in conclusion (26) above), then its resolution may be appropriate in the
regime-specific mechanism. However, when the conflict concerns provisions in treaties that are not
part of the same regime, special attention should be given to the independence of the means of
settlement chosen.
(29) Inter se agreements. The case of agreements to modify multilateral treaties by certain of the parties
only (inter se agreements) is covered by article 41 VCLT. Such agreements are an often used
technique for the more effective implementation of the original treaty between a limited number of
treaty parties that are willing to take more effective or more far-reaching measures for the realization of
the object and purpose of the original treaty. Inter se agreements may be concluded if this is provided
for by the original treaty or it is not specifically prohibited and the agreement: “(i) does not affect the
enjoyment by the other parties of their rights under the treaty or the performance of their obligations;
(ii) does not relate to a provision, derogation from which is incompatible with the effective execution
of the object and purpose of the treaty as a whole” (article 41 (1) (b) VCLT).
(30) Conflict clauses. When States enter into a treaty that might conflict with other treaties, they should aim
to settle the relationship between such treaties by adopting appropriate conflict clauses. When adopting
such clauses, it should be borne in mind that:
(a) They may not affect the rights of third parties;
(b) They should be as clear and specific as possible. In particular, they should be directed to
specific provisions of the treaty and they should not undermine the object and purpose of the treaty;
(c) They should, as appropriate, be linked with means of dispute settlement.

6. Hierarchy in international law: Jus cogens, Obligations erga omnes,

Article 103 of the Charter of the United Nations

(31) Hierarchical relations between norms of international law. The main sources of international law
(treaties, custom, general principles of law as laid out in Article 38 of the Statute of the International
Court of Justice) are not in a hierarchical relationship inter se.18 Drawing analogies from the
hierarchical nature of domestic legal system is not generally appropriate owing to the differences
between the two systems. Nevertheless, some rules of international law are more important than other
rules and for this reason enjoy a superior position or special status in the international legal system.
17
There is not much case-law on conflicts between successive norms. However, the situation of a treaty conflict
arose in Slivenko and others v. Latvia (Decision as to the admissibility of 23 January 2002) ECHR 2002-II,
pp. 482 483, paras. 60-61, in which the European Court of Human Rights held that a prior bilateral treaty between
Latvia and Russia could not be invoked to limit the application of the European Convention on Human Rights and
Fundamental Freedoms: “It follows from the text of Article 57 (1) of the [European Convention on Human
Rights], read in conjunction with Article 1, that ratification of the Convention by a State presupposes that any law
then in force in its territory should be in conformity with the Convention … In the Court’s opinion, the same
principles must apply as regards any provisions of international treaties which a Contracting State has concluded
prior to the ratification of the Convention and which might be at variance with certain of its provisions.”
18
In addition, Article 38 (d) mentions “judicial decisions and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the determination of rules of law”.

27
 This is sometimes expressed by the designation of some norms as “fundamental” or as expressive of
“elementary considerations of humanity” 19 or “intransgressible principles of international law”. 20
What effect such designations may have is usually determined by the relevant context or instrument in
which that designation appears.
(32) Recognized hierarchical relations by the substance of the rules: Jus cogens. A rule of international
law may be superior to other rules on account of the importance of its content as well as the universal
acceptance of its superiority. This is the case of peremptory norms of international law (jus cogens,
Article 53 VCLT), that is, norms “accepted and recognized by the international community of States as
a whole from which no derogation is permitted”.21
(33) The content of jus cogens. The most frequently cited examples of jus cogens norms are the prohibition
of aggression, slavery and the slave trade, genocide, racial discrimination apartheid and torture, as well
as basic rules of international humanitarian law applicable in armed conflict, and the right to self-
determination.22 Also other rules may have a jus cogens character inasmuch as they are accepted and
recognized by the international community of States as a whole as norms from which no derogation is
permitted.
(34) Recognized hierarchical relations by virtue of a treaty provision: Article 103 of the Charter of the
United Nations. A rule of international law may also be superior to other rules by virtue of a treaty
provision. This is the case of Article 103 of the United Nations Charter by virtue of which “In the
event of a conflict between the obligations of the Members of the United Nations under the … Charter
and their obligations under any other international agreement, their obligations under the … Charter
shall prevail.”
(35) The scope of Article 103 of the Charter. The scope of Article 103 extends not only to the Articles of
the Charter but also to binding decisions made by United Nations organs such as the Security
Council.23 Given the character of some Charter provisions, the constitutional character of the Charter
and the established practice of States and United Nations organs, Charter obligations may also prevail
over inconsistent customary international law.
(36) The status of the United Nations Charter. It is also recognized that the United Nations Charter itself
enjoys special character owing to the fundamental nature of some of its norms, particularly its
principles and purposes and its universal acceptance.24
(37) Rules specifying obligations owed to the international community as a whole: Obligations erga
omnes. Some obligations enjoy a special status owing to the universal scope of their applicability.
This is the case of obligations erga omnes, that is obligations of a State towards the international
community as a whole. These rules concern all States and all States can be held to have a legal interest

19
Corfu Channel case (United Kingdom v. Albania) I.C.J. Reports 1949, p. 22.
20
Legality of the Threat or Use of Nuclear Weapons case, Advisory Opinion, I.C.J. Reports 1996, para. 79.
21
Article 53 VCLT: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general international law having
the same character.
22
Official Records of the General Assembly, Fifty-sixth Session, Supplement 10 (A/56/10), commentary to article 40
of the draft articles on State Responsibility, paras. (4)-(6). See also commentary to article 26, para. (5). See also
Case concerning armed activities on the territory of the Congo (Democratic Republic of the Congo v. Rwanda)
I.C.J. Reports 2006, para. 64.
23
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United States of America) (Provisional Measures) I.C.J. Reports 1998,
para. 42 and Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. the United Kingdom) (Provisional
Measures) I.C.J. Reports 1992, paras. 39-40.
24
See Article 2 (6) of the Charter of the United Nations.

28
 in the protection of the rights involved. 25 Every State may invoke the responsibility of the State
violating such obligations.26
(38) The relationship between jus cogens norms and obligations erga omnes. It is recognized that while all
obligations established by jus cogens norms, as referred to in conclusion (33) above, also have the
character of erga omnes obligations, the reverse is not necessarily true. 27 Not all erga omnes
obligations are established by peremptory norms of general international law. This is the case, for
example, of certain obligations under “the principles and rules concerning the basic rights of the human
person”,28 as well as of some obligations relating to the global commons.29
(39) Different approaches to the concept of obligations erga omnes. The concept of erga omnes obligations
has also been used to refer to treaty obligations that a State owes to all other States parties (obligations
erga omnes partes)30 or to non-party States as third party beneficiaries. In addition, issues of territorial
status have frequently been addressed in erga omnes terms, referring to their opposability to all

25
In the words of the International Court of Justice: “… an essential distinction should be drawn between the
obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in
the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the
importance of the rights involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes. Case concerning the Barcelona Traction, Light and Power Company, Limited
(Belgium v. Spain) (Second Phase) I.C.J. Reports 1970, p. 3 at p. 32, para. 33. Or, in accordance with the
definition, by the Instutut de droit international, an obligation erga omnes is “[a]n obligation under general
international law that a State owes in any given case to the international community, in view of its common values
and its concern for compliance, so that a breach of that obligation enables all States to take action”. Institut de
droit international, “Obligations and Rights Erga Omnes in International Law”, Krakow Session, Annuaire de
l’Institut de droit international (2005), article 1.
26
Official Records of the General Assembly, Fifty-sixth Session, Supplement 10 (A/56/10), articles on
Responsibility of States for internationally wrongful acts, article 48 (1) (b). This would include common article 1
of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, the Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea; the Geneva Convention relative to the Treatment of Prisoners of War, and the
Geneva Convention relative to the Protection of Civilian Persons in Time of War, all of 12 August 1949.
27
According to the International Court of Justice “Such obligations derive, for example, in contemporary
international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and racial discrimination.
Some of the corresponding rights of protection have entered into the body of general international law … others
are conferred by international instruments of a universal or quasi-universal character.” Case concerning the
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase) I.C.J. Reports 1970 ,
p. 3 at p. 32, para. 34. See also Case concerning East Timor (Portugal v. Australia) I.C.J. Reports 1995, p. 90 at p.
102, para. 29. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
Advisory Opinion, I.C.J. Reports 2004, paras. 155 and 159 (including as erga omnes obligations “certain …
obligations under international humanitarian law” as well as the right of self-determination). For the prohibition of
genocide as an erga omnes obligation, see Case concerning application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections,
Judgment, I.C.J. Reports 1996, p. 595 at para. 31, and Case concerning armed activities on the territory of the
Congo (Democratic Republic of the Congo/Rwanda) I.C.J. Reports 2006, at para. 64. In the Furundzija case,
torture was defined as both a peremptory norm and an obligation erga omnes, see Prosecutor v. Anto Furundzija,
Judgment of 10 December 1998, Case No. IT-95-17/1, Trial Chamber II, ILR, vol. 121 (2002), p. 260, para. 151.
28
Barcelona Traction case, ibid.
29
The obligations are illustrated by article 1 of the Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, United Nations, Treaty
Series, vol. 610, p. 205 and article 136 of the United Nations Convention on the Law of the Sea, United Nations,
Treaty Series, vol. 1834, p. 396.
30
Institut de droit international, “Obligations Erga Omnes in International Law”, Krakow Session, Annuaire de
l’Institut de droit international (2005), article 1 (b).

29
 States.31 Thus, boundary and territorial treaties have been stated to “represent[] a legal reality which
necessarily impinges upon third States, because they have effect erga omnes”.32
(40) The relationship between jus cogens and the obligations under the United Nations Charter. The
United Nations Charter has been universally accepted by States and thus a conflict between jus cogens
norms and Charter obligations is difficult to contemplate. In any case, according to Article 24 (2) of
the Charter, the Security Council shall act in accordance with the Purposes and Principles of the United
Nations which include norms that have been subsequently treated as jus cogens.
(41) The operation and effect of jus cogens norms and Article 103 of the Charter:
(a) A rule conflicting with a norm of jus cogens becomes thereby ipso facto void;
(b) A rule conflicting with Article 103 of the United Nations Charter becomes inapplicable as a
result of such conflict and to the extent of such conflict.
(42) Hierarchy and the principle of harmonization. Conflicts between rules of international law should be
resolved in accordance with the principle of harmonization, as laid out in conclusion (4) above. In the
case of conflict between one of the hierarchically superior norms referred to in this section and another
norm of international law, the latter should, to the extent possible, be interpreted in a manner consistent
with the former. In case this is not possible, the superior norm will prevail.

31
“In my view, when a title to an area of maritime jurisdiction exists - be it to a continental shelf or (arguendo)
to a fishery zone - it exists erga omnes, i.e. is opposable to all States under international law”, Separate Opinion
of Judge Oda, Case concerning maritime delimitation in the area between Greenland and Jan Mayen
(Denmar v. Norway) Judgment, I.C.J. Reports 1993, p. 38 at p. 100, para. 40. See likewise, Separate Opinion
by Judge De Castro, in Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South-West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,
I.C.J. Reports 1971, p. 16 at p. 165: “… a legal status - like the iura in re with which it is sometimes confused - is
effective inter omnes and erga omnes”. See also Dissenting Opinion by Judge Skubiszewski, in Case concerning
East Timor (Portugal v. Australia) I.C.J. Reports 1995, p. 90 at p. 248, paras. 78-79.
32
Government of the State of Eritrea v. the Government of the Republic of Yemen (Phase one: Territorial
sovereignty and scope of the dispute), Arbitration Tribunal, 9 October 1998, ILR, vol. 114 (1999), p. 1 at p. 48,
para. 153.

30
 RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS 2001

Text adopted by the Commission at its fifty-third session, in 2001, and submitted to the General Assembly
as a part of the Commission’s report covering the work of that session. The report, which also contains
commentaries on the draft articles, appears in Yearbook of the International Law Commission, 2001, vol. II
(Part Two). Text reproduced as it appears in the annex to General Assembly resolution 56/83 of 12
December 2001, and corrected by document A/56/49(Vol. I)/Corr.4.

Part one The internationally wrongful act of a state

Chapter I General principles

Article l Responsibility of a State for its internationally wrongful acts

Every internationally wrongful act of a State entails the international responsibility of that State.

Article 2 Elements of an internationally wrongful act of a State

There is an internationally wrongful act of a State when conduct consisting of an action or omission:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.

Article 3 Characterization of an act of a State as internationally wrongful

The characterization of an act of a State as internationally wrongful is governed by international law. Such
characterization is not affected by the characterization of the same act as lawful by internal law.

Chapter II Attribution of conduct to a State

Article 4 Conduct of organs of a State

1. The conduct of any State organ shall be considered an act of that State under international law, whether
the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the
organization of the State, and whatever its character as an organ of the central Government or of a territorial
unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal law of the
State.
Article 5 Conduct of persons or entities exercising elements of governmental authority

The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered
by the law of that State to exercise elements of the governmental authority shall be considered an act of the
State under international law, provided the person or entity is acting in that capacity in the particular
instance.

Article 6 Conduct of organs placed at the disposal of a State by another State

The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the
former State under international law if the organ is acting in the exercise of elements of the governmental
authority of the State at whose disposal it is placed.

Article 7 Excess of authority or contravention of instructions

The conduct of an organ of a State or of a person or entity empowered to exercise elements of the
governmental authority shall be considered an act of the State under international law if the organ, person or
entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

31
Article 8 Conduct directed or controlled by a State

The conduct of a person or group of persons shall be considered an act of a State under international law if
the person or group of persons is in fact acting on the instructions of, or under the direction or control of,
that State in carrying out the conduct.

Article 9 Conduct carried out in the absence or default of the official authorities

The conduct of a person or group of persons shall be considered an act of a State under international law if
the person or group of persons is in fact exercising elements of the governmental authority in the absence or
default of the official authorities and in circumstances such as to call for the exercise of those elements of
authority.

Article 10 Conduct of an insurrectional or other movement

1. The conduct of an insurrectional movement which becomes the new Government of a State shall be
considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of
the territory of a pre-existing State or in a territory under its administration shall be considered an act of the
new State under international law.

3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the
movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.

Article 11 Conduct acknowledged and adopted by a State as its own

Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an
act of that State under international law if and to the extent that the State acknowledges and adopts the
conduct in question as its own.

Chapter III Breach of an international obligation

Article 12 Existence of a breach of an international obligation

There is a breach of an international obligation by a State when an act of that State is not in conformity with
what is required of it by that obligation, regardless of its origin or character.

Article 13 International obligation in force for a State

An act of a State does not constitute a breach of an international obligation unless the State is bound by the
obligation in question at the time the act occurs.

Article 14 Extension in time of the breach of an international obligation

1. The breach of an international obligation by an act of a State not having a continuing character occurs at
the moment when the act is performed, even if its effects continue.

2. The breach of an international obligation by an act of a State having a continuing character extends over
the entire period during which the act continues and remains not in conformity with the international
obligation.

3. The breach of an international obligation requiring a State to prevent a given event occurs when the event
occurs and extends over the entire period during which the event continues and remains not in conformity
with that obligation.

Article 15 Breach consisting of a composite act

32
1. The breach of an international obligation by a State through a series of actions or omissions defined in
aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or
omissions, is sufficient to constitute the wrongful act.

2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions
of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity
with the international obligation.

Chapter IV Responsibility of a State in connection with the act of another State

Article 16 Aid or assistance in the commission of an internationally wrongful act

A State which aids or assists another State in the commission of an internationally wrongful act by the latter
is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.

Article 17 Direction and control exercised over the commission of an internationally wrongful act

A State which directs and controls another State in the commission of an internationally wrongful act by the
latter is internationally responsible for that act if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.

Article 18 Coercion of another State

A State which coerces another State to commit an act is internationally responsible for that act if:

(a) the act would, but for the coercion, be an internationally wrongful act of the coerced State; and

(b) the coercing State does so with knowledge of the circumstances of the act.

Article 19 Effect of this chapter

This chapter is without prejudice to the international responsibility, under other provisions of these articles,
of the State which commits the act in question, or of any other State.

Chapter V Circumstances precluding wrongfulness

Article 20 Consent

Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of
that act in relation to the former State to the extent that the act remains within the limits of that consent.

Article 21 Self-defence

The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence
taken in conformity with the Charter of the United Nations.

Article 22 Countermeasures in respect of an internationally wrongful act

The wrongfulness of an act of a State not in conformity with an international obligation towards another
State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State
in accordance with chapter II of part three.

Article 23 Force majeure

33
1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is
precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen
event, beyond the control of the State, making it materially impossible in the circumstances to perform the
obligation.

2. Paragraph 1 does not apply if:

(a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of
the State invoking it; or

(b) the State has assumed the risk of that situation occurring.

Article 24 Distress

1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is
precluded if the author of the act in question has no other reasonable way, in a situation of distress, of
saving the author’s life or the lives of other persons entrusted to the author’s care.

2. Paragraph 1 does not apply if:

(a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the
State invoking it; or

(b) the act in question is likely to create a comparable or greater peril.

Article 25 Necessity

1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in
conformity with an international obligation of that State unless the act:

(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and

(b) does not seriously impair an essential interest of the State or States towards which the obligation exists,
or of the international community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:

(a) the international obligation in question excludes the possibility of invoking necessity; or

(b) the State has contributed to the situation of necessity.

Article 26 Compliance with peremptory norms

Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an
obligation arising under a peremptory norm of general international law.

Article 27 Consequences of invoking a circumstance precluding wrongfulness

The invocation of a circumstance precluding wrongfulness in accordance with this chapter is without
prejudice to:
(a) compliance with the obligation in question, if and to the extent that the circumstance precluding
wrongfulness no longer exists;

(b) the question of compensation for any material loss caused by the act in question.

Part two Content of the international responsibility of a State

Chapter I General principles

34
Article 28 Legal consequences of an internationally wrongful act

The international responsibility of a State which is entailed by an internationally wrongful act in accordance
with the provisions of part one involves legal consequences as set out in this part.

Article 29 Continued duty of performance

The legal consequences of an internationally wrongful act under this part do not affect the continued duty of
the responsible State to perform the obligation breached.

Article 30 Cessation and non-repetition

The State responsible for the internationally wrongful act is under an obligation:

(a) to cease that act, if it is continuing;

(b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.

Article 31 Reparation

1. The responsible State is under an obligation to make full reparation for the injury caused by the
internationally wrongful act.

2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a
State.

Article 32 Irrelevance of internal law

The responsible State may not rely on the provisions of its internal law as justification for failure to comply
with its obligations under this part.

Article 33 Scope of international obligations set out in this part

1. The obligations of the responsible State set out in this part may be owed to another State, to several
States, or to the international community as a whole, depending in particular on the character and content of
the international obligation and on the circumstances of the breach.

2. This part is without prejudice to any right, arising from the international responsibility of a State, which
may accrue directly to any person or entity other than a State.

Chapter II Reparation for injury

Article 34 Forms of reparation

Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution,
compensation and satisfaction, either singly or in combination, in accordance with the provisions of this
chapter.

Article 35 Restitution

A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to
re-establish the situation which existed before the wrongful act was committed, provided and to the extent
that restitution:

(a) is not materially impossible;

(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of
compensation.

Article 36 Compensation

35
1. The State responsible for an internationally wrongful act is under an obligation to compensate for the
damage caused thereby, insofar as such damage is not made good by restitution.

2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is
established.

Article 37 Satisfaction

1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the
injury caused by that act insofar as it cannot be made good by restitution or compensation.

2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology
or another appropriate modality.

3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the
responsible State.

Article 38 Interest

1. Interest on any principal sum due under this chapter shall be payable when necessary in order to ensure
full reparation. The interest rate and mode of calculation shall be set so as to achieve that result.

2. Interest runs from the date when the principal sum should have been paid until the date the obligation to
pay is fulfilled.

Article 39 Contribution to the injury

In the determination of reparation, account shall be taken of the contribution to the injury by wilful or
negligent action or omission of the injured State or any person or entity in relation to whom reparation is
sought.

Chapter III Serious breaches of obligations under peremptory norms of general international law

Article 40 Application of this chapter

1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of
an obligation arising under a peremptory norm of general international law.

2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible
State to fulfil the obligation.

Article 41 Particular consequences of a serious breach of an obligation under this chapter

1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of
article 40.

2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article
40, nor render aid or assistance in maintaining that situation.

3. This article is without prejudice to the other consequences referred to in this part and to such further
consequences that a breach to which this chapter applies may entail under international law.

Part three The implementation of the international responsibility of a state

Chapter I Invocation of the responsibility of a State

Article 42 Invocation of responsibility by an injured State

36
A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached
is owed to:

(a) that State individually; or

(b) a group of States including that State, or the international community as a whole, and the breach of the
obligation:

(i) specially affects that State; or

(ii) is of such a character as radically to change the position of all the other States to which the obligation is
owed with respect to the further performance of the obligation.

Article 43 Notice of claim by an injured State

1. An injured State which invokes the responsibility of another State shall give notice of its claim to that
State.

2. The injured State may specify in particular:

(a) the conduct that the responsible State should take in order to cease the wrongful act, if it is continuing;

(b) what form reparation should take in accordance with the provisions of part two.

Article 44 Admissibility of claims

The responsibility of a State may not be invoked if:

(a) the claim is not brought in accordance with any applicable rule relating to the nationality of claims;

(b) the claim is one to which the rule of exhaustion of local remedies applies and any available and
effective local remedy has not been exhausted.

Article 45 Loss of the right to invoke responsibility

The responsibility of a State may not be invoked if:

(a) the injured State has validly waived the claim;

(b) the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse
of the claim.

Article 46 Plurality of injured States

Where several States are injured by the same internationally wrongful act, each injured State may separately
invoke the responsibility of the State which has committed the internationally wrongful act.

Article 47 Plurality of responsible States

1. Where several States are responsible for the same internationally wrongful act, the responsibility of each
State may be invoked in relation to that act.

2. Paragraph 1:

(a) does not permit any injured State to recover, by way of compensation, more than the damage it has
suffered;

(b) is without prejudice to any right of recourse against the other responsible States.

Article 48 Invocation of responsibility by a State other than an injured State

37
1. Any State other than an injured State is entitled to invoke the responsibility of another State in
accordance with paragraph 2 if:

(a) the obligation breached is owed to a group of States including that State, and is established for the
protection of a collective interest of the group; or

(b) the obligation breached is owed to the international community as a whole.

2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:

(a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in
accordance with article 30; and

(b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of
the injured State or of the beneficiaries of the obligation breached.

3. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45
apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

Chapter II Countermeasures

Article 49 Object and limits of countermeasures

1. An injured State may only take countermeasures against a State which is responsible for an
internationally wrongful act in order to induce that State to comply with its obligations under part two.

2. Countermeasures are limited to the non-performance for the time being of international obligations of the
State taking the measures towards the responsible State.

3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of
performance of the obligations in question.

Article 50 Obligations not affected by countermeasures

1. Countermeasures shall not affect:

(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United
Nations;

(b) obligations for the protection of fundamental human rights;

(c) obligations of a humanitarian character prohibiting reprisals;

(d) other obligations under peremptory norms of general international law.

2. A State taking countermeasures is not relieved from fulfilling its obligations:

(a) under any dispute settlement procedure applicable between it and the responsible State;

(b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents.

Article 51 Proportionality

Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the
internationally wrongful act and the rights in question.

Article 52 Conditions relating to resort to countermeasures

1. Before taking countermeasures, an injured State shall:

38
(a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under part two;

(b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that
State.

2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are
necessary to preserve its rights.

3. Countermeasures may not be taken, and if already taken must be suspended without undue delay if:

(a) the internationally wrongful act has ceased; and

(b) the dispute is pending before a court or tribunal which has the authority to make decisions binding on
the parties.

4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures
in good faith.

Article 53 Termination of countermeasures

Countermeasures shall be terminated as soon as the responsible State has complied with its obligations
under part two in relation to the internationally wrongful act.

Article 54 Measures taken by States other than an injured State

This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the
responsibility of another State, to take lawful measures against that State to ensure cessation of the breach
and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.

Part four General provisions

Article 55 Lex specialis

These articles do not apply where and to the extent that the conditions for the existence of an internationally
wrongful act or the content or implementation of the international responsibility of a State are governed by
special rules of international law.

Article 56 Questions of State responsibility not regulated by these articles

The applicable rules of international law continue to govern questions concerning the responsibility of a
State for an internationally wrongful act to the extent that they are not regulated by these articles.

Article 57 Responsibility of an international organization

These articles are without prejudice to any question of the responsibility under international law of an
international organization, or of any State for the conduct of an international organization.

Article 58 Individual responsibility

These articles are without prejudice to any question of the individual responsibility under international law
of any person acting on behalf of a State.

Article 59 Charter of the United Nations

These articles are without prejudice to the Charter of the United Nations.

39