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ternational law. The creation of international organiza- United States, are forbidden to enter into "any agreement
tions and agencies and the growth of the idea that in- or compact" without the approval of Congress. 34 If a
dividuals can be subjects of international law raises the state in a federal union concludes a treaty in violation of its
possibility, however, that international organizations, and municipal law, its legitimacy under international jurispru-
perhaps even individuals, can be parties to international dence is uncertain. If another state reasonably relies on the
agreements. International organizations, particularly state's representations, an estoppel might arise, as when a
agencies of the U.N., have entered into treaties with head of state falsely represents that he has constitutional
states. 28 The 1949 decision of the International Court of authority to bind his state. 35
Justice in the Reparations for Iqjuries Syffered in the Ser- c. Other entities. Protectorate or dependent states nor-
vice of the United Nations 29 case established the fact that mally lack the capacity to enter into international agree-
the U.N. possesses legal capacity to bring a claim against a ments. However, the terms of the protectorate may admit
state for failing adequately to protect a U.N. employee. In an international capacity to make treaties, as did that of
this opinion, the Court stated that ". . . the Organization France over Algeria and Tunisia after World War 11. 36
must be deemed to have those powers which, though not Where territories have not yet achieved statehood, as with
expressly provided for in the Charter, are conferred upon colonial states engaged in the process of decolonization or
it by necessary implication as being essential to the per- in wars of "national liberation," international capacity is
formance of its duties." 30 The question as to the ability of sometimes recognized by other states. 37 Self-goveming ter-
international organizations to enter into treaties is still not ritories are generally considered to have less treaty-making
fully settled, and the Vienna Convention makes no at- capacity than protected states, although realistically,
tempt to resolve this issue. However, Article 5 of the Con- . . . blerhaps the only limitation on the possession and exercise of
vention provides that it applies to ". . . any treaty which treaty-making capacity by a political subdivision is lack of consent to the
is the constituent instrument of an international organi- exercise of such capacity by the dominant (or 'sovereign') entity to
zation and to any treaty adopted within an international which the subdivision is subordinate. 3s
organization without prejudice to any relevant rules of the d. Private entities. There is an increasing trend for cor-
organization." Moreover, Article 3 states that the fact that porations, both public and private, to enter into interna-
the Convention does not apply to international agree- tional agreements. The Island of Palmas Arbitration case
ments between states and other subjects of international of 1928 involved a challenge to the validity of political
law will not affect the legal force of such agreements and will contracts between the Dutch East India Company and na-
not prevent the application to these agreements of the rules tive rulers. The arbitrator held that the company's acts
of the Convention to which they would be subjected
should be "assimilated to acts of the Netherlands," and
in the Convention's absence; i.e., customary treaty law. 31
thus it was "entitled to create situations recognized by in-
b. States. The Vienna Convention also does not deal
expressly with the issue of the capacity of states within a ternational law." 39 However, the fact that the company
federal system to enter into treaties, leaving this question was entitled, as agent for a state, to enter into such agree-
to existing law. Essentially, such capacity depends initially ments, did not necessarily determine its capacity to make
upon the constitutional law of the state in question. Some treaties on its own.
constituent states, such as those of the Federal Republic of e. The capacity of individuals to make international
Germany and Switzerland, may conclude treaties among
agreements is doubtful, although the peculiar interests of
themselves without the consent of the government. 32
Some, like those of the Soviet Union, are recognized as individuals in agreements involving, for example, human
subjects of international law by the Constitution and are rights or individual property rights, might properly lead to
permitted to become members of the U.N. and parties to recognition of their capacity to enter such agreements.
multilateral international agreements. 33 Others, like the
34. U.S. Const., Art. I, 5 10;Art.11,s 3.U.S. states do sometimes
28. Some 20percent of the multilateral treaties new in force include enter into agreement with foreign states, such as agreements with the
international organizations as parties. See S. Rosenne, The Law of bordering states of Canada or Mexico concerning joint construction or
Treaties:A Guide to the Legislative Hhtory ofthe Vienna Convention 105 maintenance of international highways or bridges. See Friedmann,
(1 970).
supra, note 23 at 309.Although Congress has generally approved these
29. 119491 I.C.J. 174. agreements, there have been cases in which sanction was withheld on
30. Id. at 179. the ground that the proposed agreements would infringe federal treaty
31. The U.N. General Assembly, by resolution on November 12, making powers. See e.g., 5 G. Hackworth, Digest of International Law
1969,recommended that the International Law Commission continue 24-5 (1940) (hereinafter cited as G. Hackworth).
its study on relations between states and international organizations, in 35. See Legal Status of Eastern Greenland Case Denmark v. Nor-
conjunction with the related issues of state succession and respon- way), [I9331P.C.I.J., ser. Am, No. 53.
sibility, and prepare a draft of suitable articles to supplement the Vie~a 36. 5G.Hackworth, supra, note 34 at 153.
Convention. 37. See Friedmann, supra, note 23 at 310.
32. I. Oppenheim, supra, note 8 at 176-77. 3s. Lissitzyn, @forts to Codify or Restate the Law of Treaties, 62
33. See V. Aspaturian, The Union Republics in Soviet Diplomacy Colum. L. Rev. 1166, 1183 (1962).
40, 173-77 (1960); M. Whiternan, Digest of IntermtionalLuw 406-13 39. Island of Palmas Case (United States v. The Netherlands), 2
(1963). U.N.R.I.A.A. 829 (1928).