and their Capacity to conclude Treaties - Zeitschrift für ...

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and their Capacity to conclude Treaties - Zeitschrift für ...

412 ILC's 1966 Draft Articles on the Law of Treaties-Commentsof the special rapporteurs had not restricted the scope of application toStates but had covered treaties of "other subjects of international law" aswell'). 'While that broader scope of application would have extendedmainly to international organizations, it would also have included entitiessuch as members of federal States, insurgents of a recognized belligerentstatus, and the Holy See 4). Since the capacity of those "other subjects ofinternational law" obviously differs substantially from the correspondingcapacity of States, the former drafts and reports thought it necessary todeal expressly with the question of the capacity to conclude treaties ofall the entities falling under the scope of application ratione personae).Article 3 of the draft articles provisionally adopted by the Commissionin 1962 accordingly had provided:"Capacity to conclude treaties1. Capacity to conclude treaties under international law is possessed by Statesand by other subjects of international law.2. In a federal State, the capacity of the member states of.a federal union toconclude treaties depends on the federal constitution.3. In the case of international organizations, capacity to conclude treatiesdepends on the constitution of the organization concerned".3) E. g. art. I para. I (a) of the ILC's 1962 draft, Yearbook of the International LawCommission (YBILC) 1962, vol. il, p. 161; art. 2 of the 1959 draft, YBILC 1959, vol. 11,P. 95.4) See: Third report by Mr. G. G. F i t z m a u r i c e, YBILC 1958, vol. II, pp. 24, 32et seq.; see also para. (2) of the Commentary on art. 3 of the 1962 draft, YBILC 1962,vol. II, p. 164.-5) See: First and Third Reports by Mr. J. L. B r i e r I y, YBILC 1950, vol. 11, p. 230;1952, vol. II, p. 50; First Report by Mr. H. L a u t e rp a c h t, YBILC 1953, vol. II, p.103et seq. (comment on art. 1) and p. 137 et seq. (comment on art. 10), the rapporteur expressingsome doubts as to the importance of some aspects of the question (see: ibid.,note p. 141); First and Third Reports by Mr. G. G. F i t z in a u r i c e, YBILC 1956, vol. II,pp. 107 et seq., 118 (text of and comment on art. 3); 1958, vol. II, p. 32 et seq.; First andFourth Reports by Sir Humphrey W a I do c k, YBILC 1962, vol. II, p. 35 et seq,; 1965,vol. 11, p. 16 et seq.; Art. 1 of the articles tentatively adopted by the ILC at its thirdsession, YBILC 1952, vol. II, p. 50. The draft articles provisionally' adopted by the ILCin 1959 (YBILC 1959, vol. II, p. 92 et seq.) did not include a separate article on thecapacity to conclude treaties (see, however, draft article 2); the question was reserved tobe dealt with later as one of the topics of substantive validity of treaties. The draftarticles provisionally adopted by the ILC in 1962 dealt with the question in art. 3, YBILC1962, vol. II, p. 164 (text and commentary).While the Havana Convention on Treaties of February 20, 1928 (Supplement to TheAmerican Journal of International Law [AJIL], vol. 29 [1935], p. 1205 et seq.) did notcontain a separate article on the capacity to conclude treaties, the Harvard Draft Conventionon the Law of Treaties (ibid., p. 657 et seq.) in draft article 3 had provided:"Capacity to make treaties.Capacity to enter into treaties is possessed by all States, but the capacity of a Stateto enter into certain treaties may be limited".http://www.zaoerv.de© 1967, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht

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