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tion. fl A note verbal is hardly distinguishable from a loose use of the terms in question. 13
memoire except that it is unsigned and summarizes diplo- (7) A modus vivendi is usually a temporary or provi-
matic discussions. sional arrangement. 14
(6) Sometimes especially formal agreements are de- (8) A compromise may signify an agreement
scribed as Acts, General Acts, Statutes, or Declarations. 12 generally of a conciliatory nature. It is also used to describe
On the other hand, the term Congressor Co&rence may the agreed terms under which an arbitrator is empowered
be substituted for these terms. This practice is, however, a to decide a dispute between two states. 15

Section 11. THE FORM AND STRUCTURE OF INTERNATIONAL AGREEMENTS
8-3. 'Treaty Law" -The Law of International Agree- Very clear evidence will have to be required before it can be assumed
ments. After years of effort, the International Law Com- that sovereign states have contracted on the basis of private law. . . . On
mission 16 finalized the most extensive agreement ever the other hand, it would probably not be justified to speak of a presump-
formulated dealing with treaty law. The Vienna Conven- tion that public international law applies. 2s
tion on the Law of Treaties 17 (The Treaty on Treaties) es- 8-5. The Capacity of Parties. a. International organiza-
tablishes definite rules, procedures, and standards tions. The Vienna Convention limits its application to
governing the formation, interpretation, and application treaties "between states" 26 and provides that "every
of international agreements. Large portions of this Con- state has the capacity to conclude treaties." 27 This is
vention are considered to be declaratory of existing inter- hardly surprising for, as noted in chapter 1, states have
national law and custom. 18 Thus, even though its prearn- traditionally been considered to be the sole subjects of in-
ble provides that ". . .the rules of customary international
law will continue to govern questions not regulated by the 11. Id.
12. E.g., The General Act of Berlin of 1885; the Statute of the Per-
provision of the present Convention," and Article 4 limits manent Court of International Justice; the Declaration of Paris of 1856,
its application to ". . . treaties which are concluded by the and the Declaration of St. Petersburg of 1868.
States, after the entry into force of the present Convention 13. Thus the phrase, "Congress of Vienna" is loosely used to refer
with regard to such States . . .," this chapter's examina- to the Fial Act or the actual agreement recorded by the principal
tion of international agreements will occur largely within powers in 1815 after the downfall of Napoleon. For the text of the Fial
Act, see N.R.Martens, Recueil de Traitks 2, 379.
the framework of the Convention's basic provisions. 14. For example, see 5 G. Hackworth, Digest of International Low
8-4. Defdng the International Agreement. Article 392, 414 (1943).
2(1) (a) of the Vienna Convention defines a treaty as 1s. W. Bishop, International Law 61 (2d ed., 1962).
. . . an international agreement concluded between two states in wit- 16. The International Law Commission is a creation of the United
ten form and governed by international law, whether embodied in a Nations. See, W. Bishop, International Law. 61 (3rd ed. 1971)
single instrument or in two or more related instnunents, and whatever (hereinafter cited as Bishop).
its particular designation. 1'. See, The Vienna Convention on the Law of Treaties, 63 Am. J.
Similar language used in the earlier Harvard Draft Con- Int7 L. 875 (1969). The Vienna Convention was the culmination of
vention on the Law of Treaties 19 was said to exclude from many years of effort to codify international standards governing treaties.
It was drafted by the International Law Commission and a United Na-
the scope of the Convention instruments which are not tions conference on the Law of Treaties held in Vienna in 1969
governed by the rules or principles of public international [hereafter cited as Vienna Convention].
law. 20 Accordingly, some writers have maintained that 1s. On the question of the extent to which the Vienna Convention
agreements relating to commercial transactions of states, is declaratory of existing international law, see Roseme, The Temporal
Application of the Vienna Convention on the Law of Treaties, 4 Cornell
such asfor the purchase of goods, are acts jure gestionis, 21
Int'l L.J. 1 (1970).
i.e., nongovernmental acts, not falling within a state's 19. Harvard Research in International Law, Drqft Convention of the
sovereign powers and thus governed by the municipal law Law of Treaties, 29 Am. J. Int'l L. Supp. 686 (1935) [hereinafter cited
of contracts. 22 Other writers have rejected this distinction, as Harvard Research].
however, arguing that all agreements between states are 20. Id. at Article 1.
21. The distinction between acts jure imperii and jure gestionis has
governed by the rules of public international law. 23 The long been signiftcant with regard to the issue of sovereign immunity,
comment by the Harvard Draft Convention took no posi- but, like a number of other rigid either/or categories, it has gradually
tion on this dispute, stating instead that the critical point is fallen into disfavor. See J. Brierly, The Law of Nations, 245-51 (6th ed.
whether an agreement creates an obligation intendedto be 1963). See also chap. 5, supra.
governed by public international norms. 24 For example, 22. F. Liszt, Le Droit International I69 (Gidel trans]. 1928).
23. Delouter, Droit International Public Positif 468 (1 920). 1 D.
certain agreements states, such as a bill of lading Anzilotti, Cours de Droit International 341 (Gidel trans]. 1926). See
issued to a state by a vessel owned and operated by generally W. Friedmann, 0.Lissitzyn & R. Pugh, Cases and Materials
another state, may by their own terms be controlled by On International Law 301-04 (1969) [hereinafter referred to as Fried-
the municipal law of one or both of the states. In the ab- mannl.
sence of an express statement in a treaty as to whether in- 24. Harvard Research, supra, note 19, at 693-95.
2s. Mann, The Low Governing State Contracts, 1944 BRlT. Y.B.
ternational or municipal law is intended to govern, the in-
mL L. 28.
tention of the parties has to be determined from the 26. Vienna Convention, kt. 1.
totality of the language and the drafting history. 27. Id. at ~rt.6.