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arbitration is a party, a conciliation procedure may be required by any party to the dispute. The text of article 39 bis and the Annex on conciliation are attached.

Article 39 bis

1. Any dispute between two or more States Party concerning whether one or more of them is a newly independent State or has become a State in circumstances which are essentially of the same character as those existing in the case of the formation of a newly independent State, which is not settled through the means indicated in article 33 of the Charter of the United Nations, may be referred by any one of those Parties to the International Court of Justice in conformity with the Statute of the Court.

2. Subject to paragraph 3 of this article, any other disputes regarding the interpretation or application of this Convention that are not settled through diplomatic channels may be submitted to arbitration by any party or parties to the dispute by means of a written notification to the other party or parties to the dispute. If the arrangements necessary to permit this arbitration to proceed, including the selection of the arbitrator or arbitrators, have not been completed within one year of the date of receipt of the notification, any party or parties to the dispute who are not primarily responsible for the failure to complete the arrangements may submit the disputes to the International Court of Justice for decision in accordance with the Statute of the Court.

3. Each State Party may at the time of signature or ratification of this Convention or accession thereto declare that it does not consider itself bound by paragraph 2 of this article. The other States Parties shall not be bound by paragraph 2 of this article with respect to any State Party which has made such a declaration.

4. Any State Party which has made a declaration in accordance with paragraph 3 of this article may at any time withdraw that declaration by notification to the Secretary-General of the United Nations.

5. When a dispute concerning the interpretation or application of this Convention includes a State Party which has made a declaration under paragraph 3, if the dispute is not settled through negotiations or by other agreed means, any party to the dispute may submit it to the conciliation procedure in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations.

Annex to the Convention

Conciliation Procedure

1. Each conciliation commission shall be composed of three members: two members who shall be appointed respectively by the State or States Party to each side of the dispute, and a Chairman appointed in accordance with paragraph 2 of this Annex. Each State Party to the present Convention shall designate in advance a person

to serve as a member of such a commission. It shall notify the designation to the United Nations, which shall maintain a register of persons so designated. If it does not make the designation in advance, it may do so during the conciliation procedure up to the moment at which the Commission begins to draft the report which it is to prepare in accordance with paragraph 6 of this Annex.

2. The Chairman of the Commission shall be chosen by the other two members. If the other two members are unable to agree within sixty days from receipt of the request referred to in paragraph 5 of article 39 bis or if one of the parties to the dispute has not availed itself of its right to designate a member of the commission, the Chairman shall be designated at the request of one of the parties to the dispute by the Secretary-General of the United Nations. The appointment shall be made within a period of one month from such a request. The Secretary-General shall appoint as the Chairman a qualified jurist who is not a national of any State party to the dispute.

3. Any vacancy shall be filled in the manner prescribed for the initial appointment.

4. The Commission shall function as soon as the Chairman has been appointed even if its composition is incomplete.

5. The Commission shall establish its own rules of procedure and shall reach its decisions and recommendations by a majority vote. It may recommend to the United Nations that an advisory opinion be requested from the International Court of Justice regarding the application or interpretation of the present Convention.

6. If the Commission is unable to obtain an agreement among the parties to the dispute on a settlement of the dispute within six months from the appointment of its Chairman, it shall prepare as soon as possible a report of its proceedings and transmit it to the parties to the dispute. The report shall include the Commission's conclusions upon the facts and questions of law and the recommendations which it has submitted to the parties to the dispute in order to facilitate a settlement of the dispute. The six months time limit may be extended by decision of the Commission. The recommendations in the report of the Commission shall not be binding on the parties to the dispute unless all the parties to the dispute have accepted them. Nevertheless, any party to the dispute may declare unilaterally that it will abide by the recommendations in the report so far as it is concerned.

7. The Secretary-General shall provide the Commission with such assistance and facilities as it may require. The expenses of the Commission shall be borne by the United Nations.

Dept. of State File L/T.

Report of the United States Delegation to the United Nations Conference on Succession of States in Respect of Treaties at Vienna, Austria, from Apr. 4 to May 6, 1977, 8–20. Art. 39 bis, concerning settlement of disputes, and the Annex to the Convention, concerning conciliation procedure, may be found in U.N. Doc. A/Conf. 80/C.1/L. 48/Add. 4, pp. 23–25.

257-179 O-79-27

The Vienna Convention on the Law of Treaties was done on May 23, 1969, and may be found at S. Ex. L, 92d Cong., 1st Sess.

The United States and Canada signed the Treaty relating to Cooperative Development of the Water Resources of the Columbia River Basin on Jan. 17, 1961, with related agreements effected by exchanges of notes on Jan. 22, 1964, and on Sept. 16, 1964 (TIAS 5638; 15 UST 1555; 542 UNTS 244; entered into force Sept. 16, 1964).

The United States and the United Kingdom signed the Treaty to Facilitate the Construction of a Ship Canal on Nov. 18, 1901 (Hay/Pauncefote) (TS 401; 32 Stat. 1903; 12 Bevans 258; entered into force on Feb. 21, 1902).

The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents was opened for signature from Dec. 14, 1973, until Dec. 31, 1974 (S. Ex. L, 93d Cong., 2d Sess.; entered into force for the United States on Feb. 20, 1977).

The Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character was done on Mar. 14, 1975, and has not entered into force.

On November 10, 1977, the Department of State sent a telegram to the U.S. Embassy in Port Moresby, Papua New Guinea, to respond to the Embassy's inquiry as to whether Papua New Guinea was a party to the International Air Services Transit Agreement (IASTA) signed on December 7, 1944. The embassy had inquired if Papua New Guinea's September 1975 independence day general notification of intention to remain bound for five years on the basis of reciprocity to the international obligations previously applicable to Australia was sufficient for Papua New Guinea to be considered a party to IASTA.

Set forth below are portions of the telegram sent by the United States in its role as depositary government for IASTA. The telegram evaluated the independence day general notification as a basis for Papua New Guinea to become a party to IASTA and as an invitation to each other party to IASTA to apply that agreement provisionally on a bilateral basis:

Regarding Papua New Guinea's becoming a party to the International Air Services Transit Agreement, the United States in its capacity as depositary government for that agreement remains of the view that the general declaration of September 16, 1975, is insufficient; that Papua New Guinea may become a party either by acceding to the agreement or by specific notification that it will succeed to this agreement. The parties to a multilateral agreement entrust to the depositary government the responsibility of initially evaluating the legal actions of states endeavoring to become party to such agreements so that the web of relationships created by such an agreement can always be finite. The depositary government must therefore be very careful to accept only actions which are both specific and in accordance with the provisions of the agreement. In

the case at hand, the September 16, 1975, declaration offers only a temporary or ad interim commitment to accept all treaty rights and obligations accruing and arising under treaties previously applicable, until September 15, 1980, and that [commitment is] subject to a possible earlier determination that the agreement should be treated as having lapsed, or should be terminated. At the same time the International Air Services Transit Agreement contemplates only states entering into full treaty partnership or definitive participation by means of notification of the Government of the United States as depositary (article VI, paras 2 and 3). As depositary government the United States simply does not have the discretion to accept the 1975 declaration as a legal action sufficient under the terms of the agreement.

It is a quite separate issue whether the September 16, 1975, declaration constitutes an invitation to each other party to the agreement to apply it provisionally between itself and Papua New Guinea on a bilateral basis. It is quite true that the commentary on the Draft Articles on Succession of States in Respect of Treaties (records of the 29th session of the General Assembly: Supplement number 10 A/9610 Rev. 1, page 85, note 3) attests to this practice. However, as indicated in that note this is strictly a bilateral matter quite separate from definitive participation of the newly independent state in the multilateral agreement. As such the United States in its capacity as sovereign state has not elected to take up such invitation to enter a provisional bilateral arrangement with Papua New Guinea regarding any of the multilateral agreements falling within the scope of the September 16, 1975, declaration. This posture should not be taken as disapproval of the provisional bilateral concept but rather is a reflection of the view that in these cases a provisional bilateral relationship would not be sufficiently useful to merit entering such relationships.

This is particularly true in the case of the International Air Services Transit Agreement. A provisional bilateral agreement between the United States and Papua New Guinea not only would have less value than Papua New Guinea's direct accession to the International Air Services Transit Agreement but also would tend to weaken rather than strengthen that multilateral agreement. Therefore, the United States would encourage Papua New Guinea to make a clear statement of its intentions to become a party to the International Air Services Transit Agreement.

Dept. of State telegram 269077 to Port Moresby, Nov. 10, 1977.

On November 14, 1977, the U.S. Embassy in Port Moresby raised several more questions concerning the Papua New Guinea's September 1975 independence day general notification. In part, the embassy inquired about the status of Papua New Guinea with regard to various multilateral agreements, some of which the U.S. Government serves as a depositary, and about the status of those agreements between the United States and Papua New Guinea which the U.S. Government

publication Treaties in Force lists with a footnote reference to the September 1975 general notification.

Portions of the Department of State telegram responding to these November 14, 1977, inquiries follow:

[The] United States Government as depositary for a number of multilateral agreements has customarily required formal notification of succession by newly independent states which had until independence been included in ratification or accession by the parent

state.

However, in [the] case of organizational agreements such as the Convention on International Civil Aviation and the Convention of the World Meteorological Organization, a new state may not succeed but must adhere in its own right.

In the case of other agreements for which [the] United States is not depositary, [the] Department, in publishing Treaties in Force, has to determine agreement by agreement whether [a] general statement made to [the] Secretary-General is acceptable. Treaties in Force may be considered as the authoritative source of parties to those agreements listed. In the absense of a footnote reference to [the] September 1975 declaration, it may be assumed that Papua New Guinea became [a] party to [the] agreement concerned either by depositing [an] instrument of adherence or accession in its own right or by notification of succession.

Where the listing of Papua New Guinea is based on the 1975 declaration to the Secretary-General which has a five-year duration, it should be noted that unless a later declaration is made, this listing will be dropped from Treaties in Force after 1980.

Dept. of State telegram 274357 to Port Moresby, Nov. 16, 1977.

Set forth below is a reprint taken from p. 179 of the 1977 edition of Treaties in Force of a portion of the text of the independence day general notification made by Papua New Guinea in a note dated Sept. 16, 1975, to the U.N. SecretaryGeneral:

1. The Government of Papua New Guinea will make an examination of all treaties applying to its territory before independence, both bilateral and multilateral, with a view to making a statement of intention in respect of each of them. The statement will declare the Government's view as to whether the treaty continues or should be continued in force (on the basis of either succession or mutual consent, and with or without modification), or should be treated as having lapsed, or should be terminated. The statement will be forwarded to the other party or parties or to the depository, as may be appropriate.

2. During the period of examination, the Government will, on a basis of reciprocity, accept all treaty rights and obligations accruing and arising under treaties previously applicable. The period of examination will extend for five years from the date of Independence, that is, until 15th September, 1980, except in the case of any treaty in respect of which an earlier statement of intention is made.

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