Article 37. Revocation or modification of obligations or rights of third States

Abstract

Art 37 complements the rules on the establishment of obligations and rights for third States contained in Arts 35 and 36 in respect of their revocation and modification. In the course of negotiations, several members of the ILC and government delegations assumed that the provision was partly or even completely superfluous. Considerable confusion and disagreement arose from the fact that the Commission could not agree on a uniform position as to the doctrinal fundament of rights for third States in terms of Art 36. In this respect, the question whether the consent of the third State was mandatory for the revocation or modification of a right accorded to that State could, as a matter of principle, only be answered in the negative from the perspective of the concept of stipulation pour autrui (→ Art 36 MN 18–25). Naturally, the issue concerned also influenced the positions taken as to whether a presumption of revocability or a presumption of irrevocability should be included. The examples given clearly show that the problems which appeared in the context of the preceding articles are likely to have a strong impact on any interpretation of Art 37 VCLT. While the doctrinal inconsistencies resulting therefrom prompted one ILC member to abstain from voting since “there should be some logic in the matter”, which, according to that member, was not the case with regard to the wording of the then Draft Art 61, the majority of the members of the ILC accepted that the theoretical differences must not prevent it from reaching an agreement on the provision. Thus, the view was taken that “[t]he Commission should adopt as neutral a formulation as possible”. As will be shown in the following (→ MN 8–11), the approach chosen brings about considerable problems in the interpretation of the provision.