Abstract
Errors occur quite frequently in the preparation of treaty texts. This may be due to the complexity or the technical character of a treaty, the time pressure under which many treaties are drafted or simply to a lack of diligence. Art 79 deals with the correction of errors found at any time after the authentication of the text of a treaty, ie after the text has been established as authentic and definitive. The agreement on the existence of an error and the method of rectifying it is essential for the application of Art 79. Art 79 provides for specific methods for the correction of errors in treaties without a depositary (para 1) and in treaties with a depositary (para 2). The same applies in the case of a lack of congruency between two or more authentic language versions (para 3). The corrected text replaces the defective text ab initio (para 4) and the correction of registered treaties has to be notified to the UN Secretary-General (para 5). A simpler procedure for the correction of errors in certified copies is set out in para 6.
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Notes
- 1.
“Agreement” in this context means the consent of the States concerned and not a treaty.
- 2.
Kolb (2011), Art 79 MN 15–16, 19.
- 3.
Waldock I 80–81. Basis for these two articles was the practice as documented in Hackworth (1943), pp. 93–101, and in the 1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1.
- 4.
[1965-I] YbILC 276.
- 5.
See, in particular, [1962-I] YbILC 182–185; [1965-I] YbILC 185–190; [1966-I/2] YbILC 334–335.
- 6.
The circle of States was enlarged from “contracting States” to “signatory States and contracting States”, see UNCLOT I 468–469.
- 7.
- 8.
Kolb (2011), Art 79 MN 3, 14. For practice differing from Art 79 → MN 9.
- 9.
Final Draft, Commentary to Art 74, 272–273, paras 1–9. See also Art 48, para 3; Final Draft, Commentary to Art 45, 244, para 9; Sinclair (1984), p. 172, n 57.
- 10.
1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1, para 48; Final Draft, Commentary to Art 74, 272, para 5.
- 11.
After the Rome Statute of the International Criminal Court 2187 UNTS 3 was opened for signature, the UN Secretary-General, as depositary, proposed several corrections. Although some of the corrections were arguably substantive (see the note by the United States (1999) 93 AJIL 484), no objections were raised and the corrections effected accordingly.
- 12.
[1962-I] YbILC 183–184; [1965-I] YbILC 187–190; Final Draft, Commentary to Art 74, 272, para 1. Kolb (2011), Art 79 MN 21 identifies two conflicting views within the ILC, one concentrating on the nature of the error, ie whether it is technical or substantial (objective view) and the other focusing on the agreement of the parties on the existence of the error (subjective view). Waldock I 80 only referred to “typographical error”.
- 13.
As an example, the ILC referred to an agreement between France and Yugoslavia on the settlement of pre-war debts of 1958 ([1959] Journal officiel de la République Française 5244), where a confusion of dollars and francs was detected. Both parties agreed on the existence of the error and corrected it accordingly. However, since a matter of substance was involved, the parties renewed their ratifications, [1962-I] YbILC 183.
- 14.
Final Draft, Commentary to Art 74, 272, para 1.
- 15.
See Yasseen [1965-I] YbILC 188.
- 16.
The principal understanding that the corrected text replaces the defective text ab initio (para 4) supports this criterion. In contrast, an amendment is effective only as of its entry into force.
- 17.
See also the intervention of Waldock [1965-I] YbILC 190. Aust (2013), pp. 293–294 mentions the Comprehensive Nuclear Test Ban Treaty, UNGA Res 50/245, 10 September 1996, UN Doc A/RES/50/245, which contains in an attachment the locations of monitoring stations, some of which were found to be unsuitable after the authentication of the text. The depositary proposed a “correction” of the locations in accordance with the procedure in Art 79 VCLT. Aust (2013) points out that this would amount to a substantive change, which could only be carried out by amending the text. However, it is not the change in substance that is decisive for the qualification as an amendment, but the clear fact that the negotiating States truly intended the locations that only later turned out to be unsuitable.
- 18.
Eg, the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C 306, 1, did not provide for privileges and immunities for the newly created post of the President of the European Council. This was obviously qualified as an unintended omission, as the procedure of Art 79 had been chosen to correct the text in all linguistic versions (see procès-verbal of rectification [2010] OJ C 81, 1).
- 19.
See also the ILC debate on the application of different procedures of correction for technical and substantive errors, [1962-I] YbILC 183–185. For a renewal of ratification, see eg [1962-I] YbILC 183. For examples in US practice, where corrections involving a substantive modification had to be submitted to the Senate, see Whiteman (1970), pp. 127–128.
- 20.
Final Draft, Commentary to Art 74, 272, para 3. However, these procedures are binding if States have not decided upon other methods of correction (Villiger 2009, Art 79 MN 9).
- 21.
See also Aust (2013), p. 294. Sometimes, it is also carried out by an informal exchange of e-mails.
- 22.
1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1, paras 55–58. For instance, in the case of the 1962 Coffee Agreement 469 UNTS 169, the UN Secretary-General set a 30-day time limit for objections, because the errors were obviously typographical and the 90-day time limit would have exceeded the period during which the treaty was opened for signature, 1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1, para 57.
- 23.
1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1, para 59.
- 24.
[1962-I] YbILC 218.
- 25.
1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1, paras 61–62. However, the UN Secretary-General does not exclude the application of a majority rule, if consultations should fail.
- 26.
1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1, para 56. Of course, a late objection that justifiably points out that the time limit was too short does have a legal effect.
- 27.
Final Draft, Commentary to Art 74, 273, para 7.
- 28.
UNCLOT I 468–469.
- 29.
UNCLOT I 469.
- 30.
1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1, paras 50–52, which also describes the development of the UN Secretary-General practice; Kolb (2011), Art 79 MN 21.
- 31.
Another practice differing from Art 79 is the application of a simplified procedure, which is sometimes used for technical treaties where errors frequently occur, see 1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1, para 60.
- 32.
1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1, para 54, referring to a correction of the 1972 Customs Convention on Containers 988 UNTS 43.
- 33.
Final Draft, Commentary to Art 74, 273, para 6.
- 34.
Waldock I 80.
References
Aust A (2013) Modern Treaty Law and Practice, 3rd edn. CUP, Cambridge
Hackworth G (ed) (1943) Digest of International Law, Vol 5. Government Printing Office, Washington
Kolb R (2011) Article 79. In: Corten O, Klein P (eds) The Vienna Conventions on the Law of Treaties. OUP, Oxford, pp 1770–1794
Sinclair I (1984) The Vienna Convention on the Law of Treaties. University Press, Manchester
Villiger M (2009) Commentary on the 1969 Vienna Convention on the Law of Treaties. Nijhoff, Leiden
Whiteman M (1970) Digest of International Law, Vol 14. Government Printing Office, Washington
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Tichy, H., Bittner, P. (2018). Article 79. In: Dörr, O., Schmalenbach, K. (eds) Vienna Convention on the Law of Treaties. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-55160-8_83
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