Page 156 - Law of Peace, Volume ,

a specific restriction, his failure to observe that restriction delegations characterized it in such diverse and political
may not be invoked to invalidate consent unless it was terms as
notified to the other negotiating states prior to his express- . . . principles of non-aggression and non-interference in the internal
ing consent. affairs of States, sovereign equality, national self-determination, the
b. Mistake, Fraud, and Illegality. Nearly all the maintenance of peace among peoples, the struggle against colonid
recorded instances of treaties concluded with reference to domination and the sovereignty of States. 80
an assumed state of facts later discovered to be materially A limiting definition was finally adopted, defining a
different or nonexistent have concerned geographical er- peremptory norm as ". .. a norm accepted and recog-
rors, especially errors in maps. 75 In instances of error, nized by the international community of states as a whole
Article 48 of the Convention provides that a state may as a norm from which no derogation is permitted and
only invoke error in a treaty to invalidate its consent if the
error relates to a fact or situation which was assumed by it which can be m&ed only by a subsequent norm of
general international law having the same character." 81
to exist at the time the treaty was concluded and which
formed an essential basis of its consent to be bound. Error 8-16. Coercion and Duress. Under traditional interna-
will not invalidate consent, however, if the state con- tional law doctrine, consent to a treaty could not be invali-
tributed to it by its own conduct or if the circumstances dated on the basis of coercion of a state or its representa-
were such as to put it on notice of a possible error. Errors tive. 82 However, the prohibition against the threat or use
relating only to the wording of the text of the treaty do not of force in intemational relations contained in the Cove-
affect its validity and are dealt with by Article 79 which nant of the League of Nations, the Pact of Paris, and Arti-
provides procedures for notifying other states of errors in cle 2(4) of the U.N. Charter and the post-World War 11
text and for their correction. war crimes trials for conduct of aggressive war have made
(1) No instances of the actual use of fraud in the coercion an improper method by which to acquire consent
conclusion of treaties are known, nor are there any known to a treaty under international law. Article 51 of the Con-
cases in which one of the parties to a treaty alleged fraud vention provides that coercion of a representative through
on the part of the others as a basis for termination of the acts or threats against him which procured a state's con-
agreement. 76 Article 49 of the Convention permits a state sent to a treaty voids such consent. Article 52 has a much
broader application, providing that
to invoke fraud as invalidating its consent if it was induced
to conclude the treaty by the fraudulent conduct of . . . a treaty is void if its conclusion has been procured by the threat or
another negotiating state. use of force in violation of the principles of international law embodied
(2) Although examples of corruption of state repre- in the Charter of the United Nations.
sentatives are said also to be nonexistent, 77 Article SO An amendment proposed by nineteen Afro-Asian and
provides that this cause may be invoked to invalidate con- Latin American states which defined "force" as including
sent. An objection by several states regarding the vague- "economic or political pressure" was withdrawn after in-
ness of this standard did not prevent its adoption. 78 tense opposition by many Western delegations. 83 The
8-15. Jus Cogens. Treaties normally supersede, as be- reference to "the principles of international law embodied
tween the parties, conflicting rules of international law. in" the U.N. Charter was said by its drafters ". . . to
However, just as the municipal law of many states specify the time element for the effect of the prohibition of
declares that certain contracts are void as contrary to resort to the threat or use of force," that is, at least from
public policy, the question has often been raised as to the date of the U.N. Charter. 84 Thus,although Article 4
whether there exists in international law rules having the provides that the Convention applies only to treaties con-
character of jus cogens, i.e., norms with which all treaties cluded after entry into force of the Convention, the con-
must be consistent. In dealing with this issue, Article 53 of tention has been made that it would be possible to invoke
the Convention declares a treaty to be void if, at the time the rule stated in Article 52 with respect to a treaty con-
of its conclusion, it conflicts with a peremptory norm of cluded since the establishment of the modem law
general international law Gus cogens). This article was the prohibiting the threat or use of force. 85
subject of considerable debate at the conference, earlier 8-17. Registration and Effect of Nonregistra-
drafts of the article being criticized as lacking norms by tion. Article 102 of the U.N. Charter requires that every
whichjus cogens could be identifed. 79 Eastern European treaty and international agreement entered into by any
U.N. member following the entry into force of the
75. Reports of the International Law Commission on the Second
Part of its Seventeenth Session and on its Eighteenth Session (1966), Charter must be registered as soon as possible with the
21 U.N. GAOR Supp. 9 at 43-44, U.N. Doc; A/6309/Iiev. 1 (1966)
[hereinafter cited as [I9661 I.L.C. Reports]; cf. Cukwurah, The Setrle- 80. Id. at 90.
ment of Boundary Disputes in International Low 181 (1967). 81. Id. at 91.
76. (19661 I.L.C. Reports 73. 82. [I9661 I.L.C. Reports 96.
77. 2 Y.B.Int'l L.C. 245 (1966). 83. Id. at 75.
78. [I9661 I.L.C. Reports 19, 94. 84. Sinchir, supra, note 66 at-98.
79. Sinclair, supra note 66 at 126-27. 8s. Id. at 100.