ARTICLE 103

CONTENTS

Text of Article 103

Paragraphs
Introductory note 1-4

I. General survey 5-6

II. Analytical summary of practice 7-47

** A. Compatibility between regional arrangements and the Charter

B. Compatibility between international treaties and the Charter

Question of Czechoslovakia: letter dated 21 August 1968 from the representatives of
Canada, Denmark, France, Paraguay, the United Kingdom of Great Britain and
Northern Ireland and the United States of America addressed to the President of the
Security Council and letter of the same date from the representative of the Union of
Soviet Socialist Republics to the President of the Security Council 7-13
C. Consequences of a conflict between an international treaty and a peremptory norm of
general international law, in relation to Article 103 14-42
1. In connexion with the law of treaties 14-34
a. Consideration of the question by the Sixth Committee (twenty-first session)... 15-19
b. Consideration of the question by the Sixth Committee (twenty-second session) 20-23
c. Consideration of the question by the United Nations Conference on the Law of
Treaties (first session) 24-30

d. Consideration of the question by the United Nations Conference on the Law of

Treaties (second session) 31-34

2. In connexion with the principle that "States shall fulfil in good faith the obligations
assumed by them in accordance with the Charter" 35-42

a. Consideration by the Sixth Committee (twenty-first session) of the report of

the Special Committee on Principles of International Law concerning Friendly
Relations and Co-operation among States 35-38
b. Consideration by the Sixth Committee (twenty-second session) of the report of
the Special Committee on Principles of International Law concerning Friendly
Relations and Co-operation among States and subsequent developments 39-42
D. Application of successive treaties relating to the same subject-matter, in connexion with
Article 103 43-47
1. Consideration of the question by the Sixth Committee (twenty-first session) 43-44
2. Consideration of the question by the United Nations Conference on the Law of
Treaties (first and second sessions) 45-47

365
 ARTICLE 103
TEXT OF ARTICLE 103
In the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other interna-
tional agreement, their obligations under the present Charter shall prevail.
INTRODUCTORY NOTE
1. During the period under review, Article 103 was no new developments concerning subsection A and only
subject to discussion and decision by different United one case for subsection B.
Nations organs in relation to a number of agenda items 3. Subsections C.and D deal with discussions that took
as well as by the United Nations Conference on Law place in the International Law Commission, in the Sixth
of Treaties. Committee of the General Assembly and. at the United
2. This study, in its analytical summary of practice, Nations Conference on the Law of Treaties.
follows the division into four main parts established by 4. Subsection C also covers discussions which lead to
the previous study, namely: A. Compatibility between the adoption of the Declaration on Principles of Inter-
regional arrangements and the Charter; B. Compati- national Law concerning Friendly Relations and Co-
bility between international treaties and the Charter; operation among States in accordance with the Charter
C. Consequences of a conflict between an international of the United Nations by the General Assembly in 1970,
treaty and a peremptory norm of general international i.e. outside the scope of the present Supplement. These
law; and D. Application of successive treaties relating to discussions occurred in a special committee and in the
the same subject-matter. It is to be noted that there were Sixth Committee, to which the former reported.

I. GENERAL SURVEY
5. During the period under review, Article 103 played mittee on Principles of International Law concerning3
a certain role in the debates of the Security Council, in Friendly Relations and Co-operation among States,
one case concerning the question of Czechoslovakia. In especially in relation to the principle that "States shall
this case, the main emphasis of the discussions centred fulfil in good faith the obligations assumed by them in
around alleged violations of the Charter, with reference accordance with the Charter". Concerning the work on
to Article 103 as a further point of contention. 1 the law of treaties, the study comprises proceedings
6. The bulk of the material relates to the relevant leading to the adoption by the United Nations Confer-
aspects of the consideration by the Sixth Committee of ence on the Law of Treaties,4 of two articles related to
the reports of the International Law Commission on the Article 103 of the Charter.
law of treaties2 and of the reports of the Special Com-
3
'See paras. 7-13 below. Seeparas. 35-42 below.
2 4
See paras. 15-23 and 43-44 below. See paras. 24-34 below.

II. ANALYTICAL SUMMARY OF PRACTICE

**A. Compatibility between regional arrangements Denmark, France, Paraguay, the United Kingdom and
and the Charter the United States requested an immediate meeting of the
Security Council with regard to the existing serious situ-
B. Compatibility between international treaties ation in the Czechoslovak Socialist Republic.
and the Charter 8. In his letter of 21 August 19686 to the President of
the Security Council the representative of the USSR
QUESTION OF CZECHOSLOVAKIA: LETTER DATED explained, inter alia, that there was no basis for consid-
21 AUGUST 1968 FROM THE REPRESENTATIVES OF eration of the matter by the Security Council. The mili-
CANADA, DENMARK, FRANCE. PARAGUAY, THE ta: y units of the socialist countries had entered the ter-
UNITED KINGDOM OF GREAT BRITAIN AND NORTH- ritory of the Czechoslovak Socialist Republic pursuant
ERN IRELAND AND THE UNITED STATES OF to a request by the Government of that State, which had
AMERICA ADDRESSED TO THE PRESIDENT OF THE appealed to the allied Governments for assistance,
SECURITY COUNCIL AND LETTER OF THE SAME DATE including armed forces assistance, in view of the threat
FROM THE REPRESENTATIVE OF THE UNION OF created by foreign and domestic reaction to the socialist
SOVIET SOCIALIST REPUBLICS TO THE PRESIDENT social order and the constitutional system of Czechoslo-
OF THE SECURITY COUNCIL vakia. The decision to comply with the request for
military assistance had been made by the Soviet Govern-
7. In their letter of 21 August 19685 to the President of ment and the Governments of other allied States in con-
the Security Council the representatives of Canada, formity with mutual treaty obligations and on the basis
5
S C, 23rd yr., Suppl. for July-Sept. 1968, p. 136, S/8758. ('Ibid., S/8759.

366
 Article 103 367

of the relevant provisions of the. United Nations legal standpoint it was absurd and intolerable in point
Charter. The events in Czechoslovakia were a matter of fact to represent the matter in such a way that the aid
that concerned the Czechoslovak peopK' and the States granted the people of Czechoslovakia by the socialist
of the socialist community, which were bound by appro- countries should appear as alleged interference in this
priate mutual obligations. country's internal affairs. In his opinion, not a single
9. At the 1441st meeting of the Security Council, Article of the Charter of the United Nations provided
on 21 August 1968, the representative of the USSR any basis for characterizing the carrying out of indi-
reaffirmed the text of his letter of the same date. On the vidual or collective self-defence as an act of inter-
other hand, it was maintained by other members of the ference.
Security Council 7 that the armed intervention con- 12. The Security Council then voted on the draft reso-
stituted a violation of, inter alia, Article 2 (4) of the lution at its 1443rd meeting on 22 August 1968; it was,
Charter of the United Nations which could not be justi- however, not adopted owing to the12 negative vote of a
fied under the'exercise of the right to individual and col- permanent member of the Council.
lective self-defence. 13. At the 1445th meeting, on 24 August 1968, the
10. At the 1442nd meeting, on 22 August 1968, a draft representative of Czechoslovakia repeated that the
resolution was introduced by the representative of Den- action had not taken place upon the request or demand
mark on behalf of the delegations of Brazil, Denmark, of the Czechoslovak Government nor of any other con-
France,8 Paraguay, the United Kingdom and the United stitutional organs of this Republic. He further stressed
States, which stressed the violation of the principle con- that the military occupation could not be justified by the
tained in Article 2 (4), namely, that all Members are to concern for the external security of the Czechoslovak
refrain in their international relations from the threat or Socialist Republic or for the fulfilment of obligations
use of force against the territorial integrity or political arising from the joint defence of the countries of the
independence of any State, and which, inter alia, con- Warsaw Treaty. There had been no imminent danger
demned the armed intervention of the USSR and the for the Czechoslovak Socialist Republic of military
members of the Warsaw Pact in the internal affairs of aggression from abroad nor of a counter-revolution. 13
the Czechoslovak Socialist Republic. The President,
speaking as representative of Brazil, remarked that C. Consequences of a conflict between an interna-
without wanting to enter into the merits of the obliga- tional treaty and a peremptory norm of general
tions and commitments under the Warsaw Pact, it was international law, in relation to Article 103
quite clear to his delegation that, under Article 103, the
obligations under the Charter of the United Nations 1. IN CONNEXION WITH THE LAW OF TREATIES
should prevail. One of those obligations was the respect
for the freedom, territorial integrity and sovereignty of 14. During the work of the International Law Com-
all States. In his opinion the Charter conferred special mission and of the Sixth Committee of the General
prerogatives on the major Powers, but by no means was Assembly on the draft articles of the law of treaties,
the right to interfere unilaterally included among such Article 103 of the Charter continued to be commented
prerogatives. The action in question not only went on in connexion with the question of treaties conflicting
beyond the Charter, it clearly violated it. 9 At the 1443rd with a peremptory norm of general international law
meeting, the representative of Senegal10 stated that (jus cogens) and also with the question of the applica-
despite the existence of the Warsaw Treaty the interven- tion of successive treaties relating to the same subject
tion constituted an interference in the internal affairs of matter.
Czechoslovakia, which had not been threatened by any
aggression from outside. a. Consideration of the question by the Sixth
11. The representative of the USSR" again underlined Committee (twenty-first session)™
that the assistance to Czechoslovakia had been provided
in conformity with existing treaty obligations. He 15. During the consideration of the reports of the
referred to article 5 of the Warsaw Treaty of 1955, International Law Commission on the work of the
which defines the tasks and purposes of the armed second part of15its seventeenth session and of its eight-
forces and of their Unified Command, and which reads eenth session, the important of the draft principle
in part: that any treaty conflicting with a peremptory norm of
"The Parties shall likewise take such other con- international law was void was underlined by a number
certed action as may be necessary to reinforce their of delegations. The view was expressed that in adopting
defensive strength, in order to defend the peaceful articles 50, 61 and 67 l6 the International Law Commis-
labour of their peoples, guarantee the inviolability of sion had been inspired by Article 103 of the Charter of
their frontiers and territories and afford protection the United Nations, which stressed the peremptory char-
against possible agression." acter of the Charter in relation to any other interna-
The actions of the Soviet Union and the other socialist tional treaty. The intention to proclaim the primacy of
countries were fully in accordance with the right of
States to individual and collective self-defence provided
for by the treaties of alliance which have been concluded I2
by the fraternal socialist countries. He held that from a lbid., para. 284.
^Ibid.,
I4
1445th mtg., paras. 161-163.
G A (XXI), Annexes, a.i. 84; ibid., 6th Com., 902nd-914th mtgs
^Ibid., Suppl. No. 9. The sessions were held from 3 to 28 January
7
1966 and from 4 May to 19 July 1966, respectively.
l6
For a more detailed study of the entire question, see case 6 of Article 50: Treaties conflicting with a peremptory norm of general
chap X I I of the Repertoire oj the Practice of the Security Council, international law (jus cogens): "A treaty is void if it conflict"; with a
Suppl. 1966-1968, p. 235, and also S C, 23rd yr., 1441st-1445th mtgs. peremptory norm of general international law from which no deroga-
8
S/8761 and Add. 1. See S C, 23rd >r., 1442nd mtg., para. 30. Sene- tion is permitted and which can be modified only by a subsequent
galq latei joined as a sponsor. norm of general international law having the same character." Arti-
S C, 23rd yr., 1442nd mtg., para 66. cle 61. Termination of treaty because of new peremptory norm;
wibid.,
11
1443rd mtg., para. 19. Article 67: Consequences of such nullity or termination. See G A
Ibid., paras. 167 ff. (XXI), Suppl. No. 9, pp. 16, 18 and 19. '
368 Chapter XVI. Miscellaneous provisions

the Charter also became apparent from the commen- b. Consideration of the question by the Sixth
taries to the draft articles prepared by the Commission. Committee (twenty-second session)
In this connexion it was observed that the norm of jus
cogens limited the rule of pacta sunt servanda.]1 20. When the Sixth Committee took up item 86 enti-
16. Some delegations, while basically agreeing with tled "Law of Treaties", the Chairman of the Interna-
the concept that there were peremptory norms from tional Law Commission pointed out that it seemed
which States could not at their own will contract out, desirable to make clear that the normal situation was
had, nevertheless, reservations concerning the prac- one in which a treaty concluded in accordance with
ticability of this concept. One delegation felt that the part II of the draft was valid and subject to the rule pacta
acceptance of such norms, as indicated in the commen- sunt servanda.20 The, Commission had been fully aware
tary of the International Law Commission to article 50, of the danger to the security of treaties inherent in the
was a statement of the problem, not its solution. There principles of law concerned with the grounds of invalid-
was a strong likelihood of divergent views concerning ity, termination and suspension of the operation of trea-
the question of how new peremptory norms come into ties. But since those principles already existed, the Com-
existence, become established and secure recognition as mission felt that it should codify them with as much
such. The role of the Charter remained unclear, as, for precision as possible so as to limit the scope for their
example, the question of whether the general principles abuse. Especially the jus cogens articles, which were dif-
in Chapter I were jus cogens or not. The Commission, ficult to make entirely precise, had been surrounded by
in its commentary, had singled out only one of these the Commission with procedural checks set forth in arti-
principles, namely, that stated in Article 2, paragraph 4 cle 62, which specifically imposed upon States the
(non-use of force), as a conspicuous example of a rule in express obligation, in the event of a dispute, to seek a
international law having the character of jus cogens. .peaceful solution in keeping with Article 33 of the
17. On the other hand, it was reiterated by delegations Charter.
that the Charter of the United Nations contained several 21. Again, some delegations had reservations as to jus
uncontestable norms of international public law which cogens. The view was advanced that the fact that there
Article 103 made obligatory for Member States. In the was no general consent as to the content of peremptory
light of attempts, however, to limit the application of norms and the absence of an agreed definition suggested
jus cogens, the concept had to be clearly stated, for that the concept of jus cogens was still so little
otherwise it could be used by States which, hiding developed that it was not ripe for inclusion in the codifi-
behind the term "treaty", tried to impose unequal terms cation of the law of treaties. An incorporation would be
on other States. Jus cogens should consequently cover a danger to the stability of treaties. The relationship
the prohibition of the threat or use of force, the inad- between article 50 and Article 103 of the Charter was
missibility of interventions in the domestic affairs of unclear; Article 103 seemed to eliminate the need for
States, the sovereign equality of States, equal rights and any further assertion of the rule of jus cogens in respect
self-determination of peoples. Any treaty, for example, of the obligations contained in the Charter.
which provided for the preparation, initiation and con- 22. It was also held that, in the absence of any provi-
duct of aggressive wars and the use of any form of coer- sion for the adjudication of differences relating to the
cion in inter-State relations had to be regarded as application of articles 50 and 6121 in particular cases, the
invalid. Conference would have either to define criteria for
18. Regarding draft article 49, according to which a applying jus cogens or consider carefully the implica-
treaty is void if its conclusion has been procured by the tions of failure to do so. The view was expressed that the
threat or use of force in violation of the principles of the articles relating to the invalidity of treaties established
Charter, one delegation stressed that this principle also sweeping rules that went far beyond the existing practice
applied to treaties concluded before the signing of the and law. Moreover, the reasoning by analogy with
Charter. The opposite view, held by the representatives municipal law became difficult in regard of peremptory
of a number of imperialist States would, in its opinion, norms of international law, since article 50 had no well-
mean that the unequal treaties imposed on colonial and developed counterpart in municipal law.
dependent countries before 1945 could not be deemed 23. The majority of the delegations, however, con-
invalid. This, however, was not in accord with Arti- tinued to support the concept of jus cogens as a corner-
cle 103 of the Charter, which made no distinction stone of the law of treaties. Peremptory norms of inter-
between treaties concluded before or after the signing of national law originated in the common consent of
the Charter. 18 States, which constituted the legal basis of any rule of
19. By resolution 2166 (XXI) of 5 December 1966, the international law. Especially smaller and weaker States
General Assembly, inter alia, decided that an interna- had an interest in the recognition of the existence of a
tional conference of plenipotentiaries should be con- public order that placed checks on unlimited freedom of
vened to consider the law of treaties and to embody the contract. 22
results of its work in an international convention and in
such instruments as it may deem appropriate. 19
20
G A ( X X I I ) , Annexes, a.i. 86, A/6827 and Add.1-2. The com-
ments included only a feu references to articles 50 and 49, namely, by
17
Czechoslovakia, p. 5; Afghanistan, p. 11; Bulgaria, p. 12; United
Article 23 of the draft: Pacta sunt servanda: "Every treaty in States, p. 27. All of them were favourable to the concept, except the
force is binding upon the parties to it and must be performed by them comment by the United States stressing the lack of a test to determine
in good faith." See G A (XXI), Suppl. No. 9. when a norm is peremptory.
18 2l
For texts of relevant statements, see G A (XXI), 6th Com., 905th See above, foot-note 16.
mtg.: Ukrainian SSR, para. 4; 906th mtg.: India, para. 4; 910th mtg.- —For texts of relevant statements, see G A (XXII), 6th Com., 964th
USSR, paras. 21-26; France: para. 54; 911th mtg.: Austria, para. 14; mtg.: Chairman of ILC, paras 12-13; 967th mtg.: United Kingdom,
United Arab Republic, para. 25; Sierra Leone, para. 45; 912th mtg.: para. 4; Austria, para. 11; 969th mtg.: France, paras. 4-5; 971st mtg.:
Ecuador, paras. 30-34; G A (XXI), Annexes a.i. 84, A/6516, Uruguay, para. 3; USSR: para. 7; 974th mtg.: Cuba, paras. 21-22:
paras. 82-92. 976th mtg.: Canada, para 4, 977th mtg.: United States, paras 2 0 , 2 1 .
19
The first session was suggested for early 1968, the second for early 979th mtg . Bulgaria, para. 7; 980th mtg.. Cyprus, para. 59. (, A
1969. ( X X I I ) , Annexes, a.i. 86, A/6913, paras 40-46
 Article 103 369

c. Consideration of the question by the United Nations other parts of that amendment were either accepted or
Conference on the Law of Treaties (first session) referred to the Drafting Committee, the part referred to
* in paragraph 28 above was rejected by the Committee of
24. At the first session of the United Nations the Whole.25
Conference on the Law of Treaties at Vienna, from 30. The Committee of the Whole recommended the
26 March to 24 May 1968, article 50 of the draft was following text to the Conference for adoption:
dealt with in the Committee of the Whole. ' ' Treaties conflicting with a peremptory norm of
25. The general positions of delegations could again general international law (jus cogens)
be divided into those that favoured a wide and dynamic "A treaty is void if, at the time of its conclusion, it
concept of jus cogens and those that regretted the conflicts with a peremptory norm of general interna-
absence of definitions and of a system of dispute settle- tional law. For the purposes of the present Conven-
ment. Some of the delegations suggested further study tion, a peremptory norm of general international law
by working groups. A number of amendments were sub- is a norm accepted and recognized by the interna-
mitted. tional community of States as a whole as a norm from
26. The assessments of article 50 varied from the sfate- which no derogation is permitted and which can be
ment that it was one of the most important articles in modified only by a subsequent norm of general inter-
the draft to the opinion that it was a Pandora's box that national law having the same character." 26
should not be retained in its present form, that it was an
attempt to transpose from the civil law to the law of d. Consideration of the question by the United Nations
treaties all rules of invalidity and that a vote on it should Conference on the Law of Treaties (second session)
be deferred.
27. In direct connexion with Article 103 of the 31. At the second session of the United Nations Con-
Charter, it was observed that by virtue of this Article the ference on the Law of Treaties at Vienna, from 9 April
rules of jus cogens undoubtedly included the purposes to 22 May 1969, article 50 of the draft was debated at
and principles set forth in Articles 1 and 2 of the Charter two plenary meetings.27
and in its Preamble. It was also pointed out that it laid 32. No new positions to draft article 50 dealing with
down the principles of a hierarchy of rules in the inter- jus cogens were advanced by delegations. The main
national legal order. One delegation expressed the view attitudes towards peremptory norms as they had been
that in comparison with Article 103 of the Charter, arti- explained in the meetings of the Committee of the Whole
cle 50 referred in the abstract to the fundamental princi- and of the Sixth Committee were briefly reiterated.
ple that treaty obligations conflicting with a peremptory Only a small number of delegations indicated their inten-
norm were void. It could not agree with the assertion tion to abstain or to vote against article 50. Thus, for
that Article 103 of the Charter would prevail regardless example, it was remarked that the provision was impre-
of the contents of articles 49 and 50 of the draft conven- cise regarding the present scope of jus cogens, as to how
tion, and believed that Article 103 would operate to the the norms it implied were formed and as to its effects.
same effect as the convention and would in fact consti- Another delegation observed that the question of the
tute a source of jus cogens. Another delegation thought burden of proof was raised if one State invoked a rule of
that article 50 represented a substantial advance on Arti- jus cogens to invalidate a treaty and the other was able
cle 103 of the Charter. The approach used in the Charter to establish that it had not accepted and recognized the
Article was also called cautious and modest, while now rule as a peremptory norm. The article was, however,
a more confident and positive one was possible due to supported by the majority, including delegations which
the developments of the last two decades.23 observed that their original concern had been alleviated
28. Among several amendments24 to article 50, there by improvements in the text and by the safeguards pro-
was one that proposed the insertion of the words vided in other articles.
"which is recognized in common by the national and 33. In connexion with Article 103 of the Charter, it
regional legal systems of the world" in order to further was observed that it constituted a striking example of a
determine the criteria by which a rule could be recog- case where States had expressly given one group of rules
nized as a peremptory norm. It was favoured as a clari- a hierarchical value superior to that enjoyed by any
fication by those who wanted a narrow interpretation of other rule. Another view was that Article 103 28demon-
jus cogens, while it was opposed by others inter alia as strated the existence of principles of jus cogens.,
seemingly based on the notion of the supremacy of the 34. Article 50, recommended by the Committee of the
national over the international legal order and of the Whole, was adopted by 87 votes to 8, with 12 absten-
regional international over the general international tions,29 and became article 53 in the final text of the
order making it more difficult to determine the contents Convention.
of many peremptory norms.
29. The motion made in connexion with the amend-
ment that the Committee should defer voting on arti- 2
*Ibid., paras. 465-466, amendment by the United States of Amer-
cle 50 and all amendments thereto was defeated. While ica. For general statements on article 50, see United Nations Confer-
ence on the Law of Treaties, first session: 52nd-57th mtgs. and 80th
mtg., paras. 293-328, 330-334 and 471-473; for all amendments and
proceedings of the Committee of the Whole, see: United Nations
Conference on the Law of Treaties, first and second sessions,
--'For statements made in connexion with Article 103, see: United A/CONF.39/1 I/Add.2, paras. 173-175 and 460-470 (United Nations
Nations Conference on the Law of Treaties, first session, Vienna, publication, Sales No. E.70.V.5).
:6
26 March-24 May 1968, 52nd mtg.: Cuba, para. 34; 53rd mtg.: Sierra This text became article 53 of the Convention on the Law of
Leone, para. 9; Poland, para. 35; 54th mtg.: India, para. 16; 55th Treaties.
:7
mtg.: Pakistan, para. 8; 56th mtg.: Trinidad and Tobago, para. 59. United Nations Conference on the Law of Treaties, second ses-
A/CONF.39/11 (United Nations publication, Sales No. E.68.V.7). sion, Plen., 19th and 20th mtgs., pp. 6 and 107, A/CONF.39/11/
:4 Add.l (United Nations publication, Sales No. E.70.V.6).
F"or amendments, see United Nations Conference on the Law of 2
Treaties, first and second sessions. Vienna, 26 March-24 May 1968 *Ibid., Plen., 19th mtg.: France, paras. 9-12; Germany, Federal
and 9 Apnl-22 Ma\ 1969, Reports of the Whole, A/CONF.39/11/ Republic of, paras. 27-30; Poland, para. 70; United Kingdom,
Add.2, p. 173, para. 461 (United Nations publication, Sales No. para. 55.
E.70.V.5). ., Plen., 20th mtg., para. 65.
370 Chapter XVI. Miscellaneous provisions

2. IN CONNEXION WITH THE PRINCIPLE THAT "STATES that States shall fulfil in good faith the obligations
SHALL FULFIL IN GOOD FAITH THE OBLIGATIONS assumed by them in accordance with the Charter.
ASSUMED BY THEM IN ACCORDANCE WITH THE
CHARTER" b . Consideration by the Sixth Committee (twenty-
second session) of the report of the Special Com-
a. Consideration by the Sixth Committee (twenty-first mittee on Principles of International Law concern-
session) of the report of the Special Committee on ing Friendly Relations and Co-operation among
Principles of International Law concerning Friendly States and subsequent developments
Relations and Co-operation among States
39. The Sixth Committee examined at the twenty-
35. The Sixth Committee examined at the twenty-first second session of the General Assembly the report of
session of the General Assembly the report of the Special the Special Committee on Principles of International
Committee on Principles of International Law concern- Law concerning Friendly Relations and Co-operation
ing Friendly Relations and Co-operation among States among States on its work during the session it held in
on its work during the session it held in New York from Geneva from 17 July to 19 August 1967.
8 March to 25 April 1966. By resolution 2103(XX), the 40. The report of the Special Committee contained a
General Assembly had inter alia requested the Special formulation of the principle that States shall fulfil in
Committee to consider the three principles set forth good faith the obligations assumed by them in accord-
in paragraph 5 of General Assembly resolution 1966 ance with the Charter as agreed upon by the Drafting
(XVIII), one of which was the principle "that States Committee:
shall fulfil in good faith the obligations assumed by " 1. Every State has the duty to fulfil in good faith
them in accordance with the Charter". the obligations assumed by it in accordance with the
36. The report of the Special Committee contained Charter of the United Nations.
three written proposals thereto. They had in common "2. Every State has the duty to fulfil in good faith
inter alia the concept that States shall in good faith and its obligations under the generally recognized princi-
in accordance with the Charter fulfil their obligations ples and rules of international law.
arising from international treaties concluded on the
basis of equality, as well as those arising from other "3. Every State has the duty to fulfil in good faith
sources of international law. Two contained language its obligations under international agreements valid
related to that of Article 103 of the Charter, one stating under the generally recognized principles and rules of
that a treaty in conflict with the Charter was invalid, the international law.
4
other focusing on the supremacy of Charter obligations '4. Where obligations arising under international
over conflicting obligations arising out of international agreements are in conflict with the obligations of
agreements.30 Members of the United Nations under the Charter of
37. Regarding the role of Article 103 of the Charter, the United Nations, the obligations under the Charter
the view was expressed that opposition to its inclusion in shall prevail."32
the principle was not understandable, especially since it 41. During the debate many delegations stated their
figured in two of the three written proposals before the acceptance of the text above and satisfaction that con-
Special Committee. As to the relationship of the compo- sensus had been possible on the formulation of this
nent parts of the principle to be established, it was held useful principle in the Special Committee, even if it was
that the first one, the rule of pacta sunt servanda, less than perfect. It was commented that the reference to
was qualified by the two other rules: that of good faith Charter obligations and their supremacy was not an idle
and that of Article 103. Good faith required that treaties repetition of Article 103, but rather a reaffirmation of
be freely entered into, which made sovereign equality the vital importance of the fulfilment of such Charter
between the parties a necessary element. A number of obligations as the duty of States to refrain in their inter-
delegations requested that the concept that unequal national relations from the threat or use of force against
treaties were invalid should be included. The view was the territorial integrity or political independence of any
expressed that together with Article 103 the rule pacta State. The statement of the principle also properly
sunt servanda signified that any treaty in conflict with reflected the need for compliance with the international
the Charter would be either null and void or abrogated obligations binding on every State, arising from custom-
by the Charter, if it had been signed before the latter's ary or conventional international law. The opinion
entry into force. A treaty that provided for intervention was expressed that paragraph 4 of the principle brought
by one State into the internal affairs of another would out the interdependence of two basic provisions of
be void ab initio since it would conflict with obligations the Charter, Article 2 (2) and Article 103, thereby
under the Charter, namely, the principles of non- strengthening their continued effect. One delegation felt
intervention, of prohibition of the threat or use of force that to avoid misinterpretation paragraph 4 should be
and of equal rights and self-determination.31 made to cover the obligations referred to in para-
38. The General Assembly, in resolution 2181 (XXI) graph 2, in order to emphasize the primacy of the Char-
of 12 December 1966, requested the Special Committee ter obligations also over generally recognized principles
inter alia to complete the formulation of the principle and rules of international law.
42. In connexion with the principle concerning the
abstention from the threat or use of force, it was
30
Joint proposal by Burma, Ghana, India, Lebanon, Madagascar, observed by one delegation that the Inter-American
Nigeria, Syria, United Arab Republic and Yugoslavia; joint pro-
posal by the United Kingdom and the United States; G A (XXI),
Annexes, a.i. 87, A/6230, paras. 522 ff.
31 32
For texts of relevant statements, see G A (XXI), 6th Com., 924th G A (XXII), Annexes, a.i. 87, A/6799, para. 285. See also ibid.,
mtg.: Czechoslovakia, para. 26; 926th mtg.: United States, para. 10; paras. 161 and 474. This formulation was later adopted without
928th mtg.: Ukrainian SSR, para. 19; 930th mtg.: United Kingdom, change by the General Assembly in resolution 2625(XXV) of 24 Octo-
para. 24; 931st mtg.: USSR, para. 19; 933rd mtg.: Argentina, ber 1970 entitled "Declaration on Principles of International Law
para. 14; 938th mtg.: Cyprus, paras. 24-25; G A (XXI), Annexes, concerning Friendly Relations and Co-operation among States in
a.i. 87, A/6547, paras. 72-76. accordance with the Charter of the United Nations".
 Article 103 371

Treaty of Reciprocal Assistance of 1947 conflicted with ject matter shall be determined in accordance with the
the Charter of the United Nations, since it introduced following paragraphs."35
new factors, such as any fact or situation that might 44. This role of Article 103 of the Charter within draft
endanger the peace of America. Here the33 Charter was to article 26 was further36underlined in statements made in
prevail, in accordance with Article 103. " ' the Sixth Committee.
D. Application of successive treaties relating to the 2. CONSIDERATION OF THE QUESTION BY THE UNITED
same subject-matter, in connexion with Article 103 NATIONS CONFERENCE ON THE LAW OF TREATIES
(FIRST AND SECOND SESSIONS)
1. CONSIDERATION OF THE QUESTION BY THE SIXTH
COMMITTEE (TWENTY-FIRST SESSION) 34
45. At the first session of the United Nations Confer-
ence on the Law of Treaties, draft article 26 was briefly
43. The Sixth Committee, at the twenty-first session of debated in the Committee of the Whole.
the General Assembly, considered the report of the
International Law Commission on the work of its eight- 46. One remark with regard to Article 103 was made
eenth session (4 May-19 July 1966). This report con- by the delegation of Switzerland in view of the nature of
tained draft articles on the law of treaties. Draft arti- its country's international status. Since Switzerland was
cle 26 was accompanied by a commentary, as follows not bound by the Charter, its signature of the Conven-
(paragraph 1): tion would have to be made subject to a reservation con-
cerning Article 103.37
"Application of successive treaties relating to the 47. At the second session, in a plenary meeting, Switz-
same subject-matter erland, repeated its position with regard to Article 103.38
Paragraph 1 of draft article 26 was adopted by the Con-
"1. Subject to Article 103 of the Charter of the ference without change and became paragraph 1 of
United Nations, the rights and obligations of States article 30 of the Convention on the Law of Treaties.
parties to successive treaties relating to the same sub-

id. The discussions in ILC as contained in its report were treated

"For texts of relevant statements, see G A (XXII), 6th Com., 993rd in the previous volume of the Repertory, Supplement No. 3, vol. IV,
mtg.: United States, para. 31; 994th mtg.: India, para. 2; 995th mtg.: paras.
36
95-97.
Cuba, para. 14; France, para. 19; 996th mtg.: USSR, para. 18; 997th For texts of relevant statements, see G A (XXI), 6th Com., 906th
mtg.: Kenya, para. 4; Uruguay, para. 21; 999th mtg.: Hungary, mtg.: India, para. 4; 911th mtg.: United Arab Republic, para. 25;
para. 4; Syria, para. 20; Canada, para. 26; 1000th mtg.: United King- 912th mtg.: Australia, para. 24; G A (XXII), 6th Com., 980th mtg.:
dom, para. 30, China, para. 56; 1003rd mtg.: Cyprus, para. 57; Cyprus, para. 55.
37
1005th mtg.: Israel, paras. 3-4; G A (XXII), Annexes, a.i. 87, United Nations Conference on the Law of Treaties, first session,
A/6955, paras. 73-79. After this session, the principle in question was Committee of the Whole, 31st mtg.: Switzerland, para. 9; see also
no longer discussed either in the Special Committee or in the Sixth ibid.y 80th mtg. A/CONF.39/11 (United Nations publication Sales
Committee. As mentioned in foot-note 32, the final Declaration, as No. E.68.V.7).
3S
adopted by the General Assembly, contained the principles as set out Ibid., second session, Plen., 13th mtg.: Switzerland, para. 57.
in para. 40. A/CONF.39/1 I/Add.1 (United Nations publication, Sales No.
34
G A (XXI), Annexes, a.i. 84. E.70.V.6).
 ARTICLES 104 AND 105
CONTENTS

Text of Article 104

Text of Article 105

Paragraphs
Introductory note 1

I. General survey 2-20

** A. Operation of Charter provisions

B. Implementation of Articles 104 and 105 2-20
1. By General Convention 2

2. By special agreements on privileges and immunities 3-6

**a. With non-member States
b. With Member States 3-6
3. By provisions on privileges and immunities contained in other agreements con-
cluded with Member or non-member States by United Nations principal or sub-
sidiary organs within their competence 7-19
4. By other decisions and actions of United Nations organs 20

II. Analytical summary of practice 21-62

A. Article 104 21

1. Legal capacity of the Organization in the territory of Member or non-member

States 21
a. Capacity to contract 21
**b. Capacity to acquire and dispose of movable and immovable property
**c. Capacity to institute legal proceedings
**2. The question of international personality of the Organization

B. Article 105 (1) 22-36

** 1. Scope of the term "the Organization"
2. Privileges and immunities of the Organization 22-36

a. Property, funds and assets 22-33

(i) Exemption from taxation and customs duties 24-27

(ii) Favourable rates of exchange 28

**(iii) Exemption from inspection of property
(iv) Control and authority of the United Nations over its premises 29-31
(v) Police protection of United Nations premises 32

(vi) Immunity from censorship of United Nations public information material 33

b. Facilities in respect of communications 34-35

**c. Immunity from legal process of persons appearing as witnesses before United
Nations organs

d. Right of transit and freedom of access to the United Nations Headquarters

District or conference area 36

372
 Articles 104 and 105 373

C. Article 105 (2) 37-62

1. Privileges and immunities of representatives of Members 37-45

**a. The expression "resident representatives to the United Nations" as used in the
Headquarters Agreement
**b. Nationality of representatives and the grant of privileges and immunities

c. Privileges and immunities 39-45

(i) At conferences held under United Nations auspices 39
(ii) Personal inviolability and immunity from arrest 40-45

**(iii) Currency or exchange facilities

**(iv) Legal status of premises
2. Privileges and immunities of observers of non-member States 46-47
3. Privileges and immunities of officials of the Organization 48-60

a. Categories of officials 48
b. Privileges and immunities 49-57
** (i) General provisions
(ii) Qualification or extension of specific privileges and immunities 49-52
**(a) Immunity from legal process
(6) Exemption from national income taxation 49

(c) Immunity from national service obligations 50

(d) Exchange facilities 51
(e) Exemption from customs duties 52
(iii) Cases in which full diplomatic privileges and immunities are extended to
certain categories of officials of the Organization 53
(iv) The question of privileges and immunities of locally recruited personnel 54
(v) Waiver of, and other obligations in connexion with, the privileges and
immunities 55-57
c. United Nations laissez-passer and travel facilities 58-60
4. Privileges and immunities of experts on mission for the United Nations 61
**5. Privileges and immunities of members of the International Court of Justice, the
Registrar, officials of the Registry, assessors, agents and counsels of the parties and
of witnesses and experts

6. Privileges and immunities of members of the United Nations peace-keeping

operations 62
Provisions relating to the United Nations Emergency Force 62
**7. Privileges and immunities of operational and executive personnel
**D. Article 105 (3)
Annex. Member States which became parties to the Convention on the Privileges and Immuni-
ties of the United Nations between 2 September 1966 and 31 December 1969.