|I.||Substantive International Law - First Part|
|7.||LAW OF TREATIES|
Land and Maritime Boundary
between Cameroon and Nigeria,
Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 275
[pp. 293-294] 30. The Court notes that the regime for depositing and transmitting declarations of acceptance of compulsory jurisdiction laid down in Article 36, paragraph 4, of the Statute of the Court is distinct from the regime envisaged for treaties by the Vienna Convention. Thus the provisions of that Convention may only be applied to declarations by analogy (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 420, para. 63).
31. The Court furthermore observes that in any event the provisions of the Vienna Convention do not have the scope which Nigeria imputes modalities according to which notifications and communications should be carried out. It does not govern the conditions in which a State expresses its consent to be bound by a treaty and those under which a treaty comes into force, those questions being governed by Articles 16 and 24 of the Convention. Indeed, the International Law Commission, in its Report to the General Assembly on the draft which was subsequently to become the Vienna Convention, specified that if the future Article 78 included in limine an explicit reservation, that was "primarily in order to prevent any misconception as to the relation" between that Article and the future Articles 16 and 24 (Yearbook of the International Law Commission, 1966, Vol. II, p. 271). It added that consequently "specific provisions [of those latter Articles] will prevail".
According to Art. 16:
"Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:
(b) their deposit with the depositary".
Article 24 further provides in its paragraph 3 that:
"When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides".
In its report to the General Assembly, the International Law Commission had pointed out that:
"In the case of the deposit of an instrument with a depositary, the problem arises whether the deposit by itself establishes the legal nexus between the depositing State and other contracting States or whether the legal nexus arises only upon their being informed by the depositary." (Yearbook of the International Law Commission, 1966, Vol. II, p. 201).
After describing the advantages and disadvantages of both solutions, it concluded that:
"The Commission considered that the existing general rule clearly is that the act of deposit by itself establishes the legal nexus ... This was the view taken by the International Court of Justice in the Right of Passage over Indian Territory (preliminary objections) case in the analogous situation of the deposit of instruments of acceptance of the optional clause under Article 36, paragraph 2, of the Statute of the Court ... [Therefore] the existing rule appears to be well-settled." (Ibid.).
This general rule is reflected in Articles 16 and 24 of the Vienna Convention: the deposit of instruments of ratification, acceptance, approval or accession to a treaty establishes the consent of a State to be bound by a treaty; the treaty enters into force as regards that State on the day of the deposit.
Thus the rules adopted in this sphere by the Vienna Convention correspond to the solution adopted by the Court in the case concerning Right of Passage over Indian Territory. That solution should be maintained.