1 Multilateral Treaties Deposited with the Secretary-General By Bradford C. Smith Legal Officer...

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Transcript of 1 Multilateral Treaties Deposited with the Secretary-General By Bradford C. Smith Legal Officer...

  • Multilateral Treaties Deposited with the Secretary-General

    By Bradford C. SmithLegal OfficerTreaty SectionOffice of Legal Affairs

  • How to Become Party to a Treaty?

    Signature Consent to be boundReferred to as Simple Signature subject to ratification, acceptance or approvalDefinitive SignatureAccessionDeposit of InstrumentsOther Final Clauses

  • Signature

    When? What States and entities can sign?Who can sign on behalf of a State?

  • SignatureWho can sign on behalf of a State?Heads of State Heads of GovernmentMinisters for Foreign AffairsActing or Ad Interim Head of State or Government or Minister for Foreign Affairs

  • SignatureFull Powers

    All other representatives wishing to sign treaties must be in possession of FULL POWERS.

  • SignatureRequirements for full powers A valid instrument of full powers must contain the following elements:Authorize signature; Identify the treaty;Specify the name of the individual authorized to sign;Issued and signed by either the Head of State or Government or the MFA or by a person exercising the power of one of the three authorities ad interim;Dated

  • SignatureVenueAppointment for signature in the Treaty SectionFacsimile No: (212) 963-3693Phone No: (212) 963-5047E-mail: [email protected]

  • SignatureTreaty Events

    Millennium Summit (2000)Focus 2001: Women and Children Treaty Event: Multilateral Treaties on Terrorism (10 to 16 November 2001)Focus 2002: Sustainable Development Focus 2003: Treaties Against Transnational Organized Crime and TerrorismFocus 2004: Treaties on the Protection of Civilians

  • Simple SignatureLegal Implications

    No positive legal obligations;Indicates a States intention to express its consent to be bound; Creates an obligation to refrain in good faith from acts that would be contrary to the object and purpose of a treaty (until it shall have made its intention clear not to become a party to the treaty art. 18 VCLT).No time limit for ratification.

  • SignatureReview

    Is the treaty open for signature?Does the treaty allow your State to sign?Who will sign?Are full powers required?Appointment for signature.

  • SignatureProblem 1Your Government would like to sign the Stockholm Convention on Persistent Organic Pollutants. You have been presented with draft full powers for review and approval. What do you advise?

  • SignatureAnswer to Problem 1Open to all States until 12 December 2002.Names of officials who will be signing are specified;Convention identified;Signature is valid (Deputy Minister and ACTING MFA);Dated;BUT: No authorization to sign the Convention.

  • Consent to be Bound

    To become party to a treaty, a State must express its consent to be bound by a treaty at international law.

  • Consent to be BoundHow?

    Definitive Signature Simple Signature followed by Ratification, Acceptance or ApprovalAccession

  • Consent to be BoundHow?

    Succession An undertaking at international law whereby a State assumes the rights and obligations under a treaty previously applied to its territory by a predecessor State.

  • Consent to be BoundDomestic RatificationA State is not a party to a treaty by simply ratifying a treaty domestically;States must ensure domestic legislative requirements are completed prior to consenting to be bound;State cannot claim that its consent to be bound is invalid due to violation of its internal law (VCLT, art. 46(1)).

  • Consent to be BoundBasic requirements for a valid instrument

    Identify treatyDeclaration of undertakingExpression of intent of the Government to be bound by the treaty and to undertake faithfully to observe and implement its provisionsIssued and signed Head of State or Government or the MFA or by a person exercising the power of one of the three authorities ad interim;Dated

  • Consent to be BoundProblem 2The following documents have been lodged for deposit with the Secretary-General. Should these documents be accepted in deposit as valid binding instruments?

  • Answer to Problem 2-AAmendment is open for Acceptance by States that are party to the Convention;Amendment is identified;Properly signed and dated;BUT: No unambiguous expression of the States intent to be bound by the Amendment and to faithfully implement its provisions.

  • Answer to Problem 2-BAssume that State has signed;Convention is identified;Properly signed;Not dated;But: No unambiguous undertaking to be bound by the Convention and to faithfully implement its provisions.

  • Consent to be BoundAdditional requirements for a valid instrumentOptional DeclarationsMandatory DeclarationsNotificationsReservationsAuthorized?Prohibited?Silent?

  • Consent to be BoundOptional and Mandatory DeclarationsLegally binding and must be included in a duly signed instrument of ratification, acceptance, etc. or signed in their own right.Often such declarations must be made upon ratification, acceptance, approval or accession.

  • Consent to be BoundOptional DeclarationsE.g.: International Covenant on Civil and Political RightsArticle 41: A State Party may at any time declare that it recognizes the competence of the Human Rights Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant.E.g.: Article 36, paragraph 2 of the Statute of the ICJ recognizing as compulsory the jurisdiction of the Court.

  • Consent to be BoundMandatory Declarations

    E.g.: OPCRC on the involvement of children in armed conflictArticle 3(2) provides: Each State party shall deposit a binding declaration upon ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced.

  • Consent to be BoundNotifications

    Notifications typically provide information as required under a treaty.Distinction between declarations and notifications is not always made.E.g.: International Convention for the Suppression of the Financing of TerrorismArticle 7 (3): Upon ratifying, accepting, approving or acceding to this Convention, each State Party shall notify the SG of the UN of the jurisdiction it has established in accordance with paragraph 2 (Note that a State Party MAY establish jurisdiction over specified offences in paragraph 2).

  • Consent to be BoundNotifications

    E.g.: International Convention for the Suppression of Terrorist Bombings Article 6(2) Same notification as above.E.g.: UNC Against Transnational Organized CrimeNotification under art. 5 (3): States whose domestic law requires an additional element than the offences established in accordance with the article must so notify the SG;Notification under art. 16(5): For States that make extradition conditional on the existence of a treaty, shall inform the SG whether they will take this Convention as the legal basis for cooperation on extradition with other States Parties to this Convention; Notification under art. 18 (13): Designation of a central authority for purposes of receiving mutual legal assistance;Notification under art. 18 (14): Designation of language; Notification under art. 31(6): Designation of an authority that can assist other states in developing measures to prevent transnational organised crime.

  • Consent to be BoundReservationsReservationsA reservation is any statement - however phrased or named - which purports to exclude or modify the legal effect of a treaty provision. Legally binding and must be included in a duly signed instrument of ratification, acceptance, etc. or signed in their own right.Must be done upon signature or deposit. If done upon signature must be confirmed upon ratification (exceptions).Modification/Withdrawal

  • Consent to be BoundReservationsTreaties silent as to reservations (Human Rights treaties).Certain reservations allowed/prohibited.Reservations altogether prohibited (Stockholm Convention, Rome Statute).Authorized reservations (settlement of disputes) E.g.: Article 35 of the UNC Against Transnational Organized Crime Each State Party may, at the time of signature, ratification, acceptance or approval of or accession to this Convention, declare that it does not consider itself bound by paragraph 2 of this article (mandatory arbitration and referral to ICJ).

  • Consent to be BoundReview

    Definitive SignatureIs the treaty open for signature?Does the treaty allow your State to sign?Who will sign?Are full powers required?

  • Consent to be BoundReview

    SignatoryRatification, Acceptance or ApprovalNon-signatoryAccessionConditions for Accession?Declarations/Notifications?Reservations?

  • Consent to be BoundProblem 3State A would like to become a party to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. State A has signed the Convention on the Rights of the Child, but has not ratified it. State A has not signed the Optional Protocol. You are a legal officer in the Treaty Section and have just been handed an instrument. What do you advise?

  • Answer to Problem 3The OP is open for signature by any State that is a party to the Convention or has signed it (article 9);The OP is subject to ratification and is open for accession by any State;The OP is specified;Declaration of undertaking present;Valid signature and date;But Missing a mandatory declaration.

  • Consent to be BoundProblem 4State B would like to become a party to the Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents. The instrument has been submitted for deposit. What do you advise?

  • Answer to Problem 4Open for accession with conditions;Convention is specified;Declaration of undertaking present;Signed and dated;Declaration under art. 26(2)(b) is authorized.

  • Consent to be BoundProblem 5State C is one of several successor States to the former Republic of State D, which has ceased to exist. State C would like to become a party to the Montreal Protocol on Substances that Deplete the Ozone Layer. State C has submitted an instrument for review to the Treaty Section. What do you advise?

  • Answer to Problem 5To become a party to the Protocol, State C must be a party to the Vienna Convention (art. 16 of Convention);State C can succeed possibly or accede to Convention;It can then accede to the Protocol;Instrument is valid in all respects.

  • Deposit of InstrumentsPlace and Method

    Instruments become effective only when deposited with SG at UNHQ;Personal delivery to the S-G or to his representative - the Legal Counsel or the Chief of the Treaty Section;By mail, by facsimile or by e-mail.

  • Deposit of InstrumentsPlace and Methods

    Appointment for deposit in the Treaty SectionFacsimile No: (212) 963-3693Phone No: (212) 963-5047E-mail: [email protected] Events

  • Deposit of InstrumentsDate of Deposit

    Date when instrument is received at UNHQ either by SG, the Legal Counsel, the Treaty Section or by the Mail Unit;Deposit will produce its effect in accordance with provisions of a treaty.

  • Final ClausesEntry into Force Treaties enter into force in accordance with their provisions:Upon a certain number of States depositing instruments of ratification;A specific time after a certain number of States have deposited instruments of ratification;Upon a certain percentage, proportion or category of States depositing instruments of ratification;On a specific date.

  • Final ClausesAmendments

    A treaty may be amended in accordance with its own provisions or in accordance with VCLT, 1969; A treaty can only be amended if it has entered into force.

  • Final ClausesAmendment Procedures

    Proposal of amendments Proposals of amendments made by a State Party and circulated by the relevant secretariat of the treatyAdoption of amendments Amendments adopted by States Parties at conference (consensus/majority vote)Circulated by the depositaryAdopted amendments circulated by depositary for formal acceptance

  • Final ClausesAmendment Procedures

    Proposal of amendmentsCirculated by the depositaryAdopted by a two-thirds majority or deemed adopted if no contracting party objects within specified period following date of circulation (11-B-16)Enter into force for all contracting parties.

  • Final ClausesEntry into Force of AmendmentsUpon certain number of States depositing instruments of consent to be bound with depositary;A specific time after certain number of States deposited instruments of consent to be bound;Upon certain percentage, proportion or category of States depositing instruments of consent to be bound;On a specific date;No objection within a specified time frame and deemed adopted. Entry into force on date of adoption.

  • Final ClausesLegal Implications of AmendmentsIn accordance with a treatys provisions, an amendment may, upon its entry into force, bind:Only those States that formally accepted the amendment (results in two legal regimes); orAll States parties to the treaty (WHO, IMO, 11-B-16).Where a State becomes party to a treaty which has been amended, it becomes party to the treaty as amended, unless otherwise indicated (see article 40(5)(a) VCLT 1969).The State is also a party to the unamended treaty in its relation to States parties to the unamended treaty.

  • Final ClausesWithdrawal and DenunciationPursuant to the provisions of a treatyorWith the consent of all parties after consultation with other contracting StatesTypically 12 months notice required

  • Final ClausesWithdrawal and DenunciationIf no provisions regarding withdrawal or denunciation, treaty NOT subject to unilateral withdrawal or denunciation unless Proven that parties intended possibility of withdrawal/denunciation; orRight of withdrawal/denunciation implied by nature of treatyStates wishing to invoke above carry burden of proof At least 12 months notice.

  • Final Clauses TerminationPursuant to provisions of a treaty;By consent of all parties after consultation with other contracting States;By subsequent treaty to which all parties of former treaty are also party.

  • Copyright NoticeCopyright 2003 by the United Nations. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, i.e., electronic, mechanical, photocopying, recording, or otherwise, without the written permission of the United Nations.

    SGs policy is to restrict assumption of depositary functions to open multilateral treaties of worldwide interest including: (1) treaties adopted by GA, (2) concluded by a plenipotentoary conference convened by a UN organ, and (3) regional treaties concluded within framework of regional commissions.2. Text is authenticated by a procedure agreed upon by States particiapting in its elaboration signature, initialing, signing final act;3. Original prepared on basis of text as adopted by resolution or as authenticated (eg, final act).Consent to be bound for example, ratification, acceptance or approval.Final Clauses: Provisions typically found at the end of a treaty regulating procedural aspects of the treaty operation. In addition to provisions dealing with participation (signature and consent to be bound), final clauses also include the following: provisional application, reservations, declarations, entry into force, depositary, territorial application, relationship to other treaties, settlement of disputes, amendments, status of annexes, withdrawal/denunciation, termination and authentic texts.

    Is the treaty open for signature? Most treaties are only open for a finite period of time. For example, the United Nations Convention Against Corruption will be open for signature from 9 to 11 December 2003 in Merida, Mexico, and thereafter, at UNHQ, until 9 December 2005. Other treaties, mostly the human rights treaties, are open for signature indefinitely. All States, Vienna formula (UN Member States, Members of the Specialized Agencies or Parties to the Statute of the ICJ) or regional agreements, i.e., UNECE, ESCWA, (e.g., Aarhus Convention is only open to members of ECE), international organizations (EC).

    The three authorities, by virtue of their functions, may sign a treaty on behalf of a State. President Fox of Mexico signing the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2002 Note that Credentials and Full Powers are distinct. Credential authorize participation in a conference and signature of the final act of such a conference.Model instrument provided in Treaty Handbook. Name of individual must be specified. TITLE alone will not suffice. If Acting or Ad Interim, that fact must be clear on the face of the instrument. Signing for or on behalf of is not acceptable. To make an appointment, PMs must contact the TS by letter or fax and provide the following information: preferred date, preferred time, who will be undertaking the action, and signed copies of full powers. PR of Vietnam signing WHO Framework Convention on Tobacco Control. *Focus 2004 will be held from 21 to 24 September 2004. Focus 2004 publication available. Commodity agreements are an exception and do provide for time limits for ratification.Signature may confer other benefits, such as allowing signatory States to attend meetings. For example, the Rome Statute provides that signatory States may attend the Assembly of States parties as observers.No precedent for unsigning. Rome State (US and Israel).

    At this point, hand out Problem I. MUST LOOK AT THE PROVISIONS OF THE TREATY CONCERNED; Definitive signature is not very common and there are time limits;Simple signature there may also be time limits, however, there are no time limits for ratification, acceptance or approval; Accession there may be conditions for accession after closing for signature, entry into force or anytime. For example, the Comprehensive Nuclear Test ban Treaty provides for accession after its entry into force. Many environmental treaties provide for accession following the closing for signature. States may provisionally apply a treaty (Provisional Application):Treaty must provide for it;Either before or after entry into force;Unilateral undertaking by a State to give effect to the treaty obligations provisionally;State may terminate provisuional application at any time unless treaty provides otherwise;Even after entry into force, provisional application may continue among States which have not yet ratified, etc.Eg: International Coffee Agreement 2001. 1.Example of the former Czechoslovakia and Yugoslavia where new States chose to succeed to many of the treaties previous applied to their territories by Czechoslovakia and Yugoslavia (CLEAN SLATE DOCTRINE);2. Also former Soviet Republics, except that the Russian Federation did not succeed but continued the application of treaties concluded by the Soviet Union.Declaration of undertaking evidences a States intention to be bound at international law.Issued and signed by either the Head of State or Government or the MFA or by a person exercising the power of one of the three authorities ad interim;

    1. Look at provisions of the treaty.1. Optional declarations are binding. 1. If the instrument does not contain such an instrument, it cannot be accepted in deposit. Not legally binding;Do not need to be signed;May be mandatory, but if not submitted will not hold up deposit of an otherwise valid instrument.*Notifications are often mandatory at the time of signature or deposit of instrument of ratification, etc. If notifications not present in an otherwise valid instrument, such an instrument will be deposited. 1.If a reservation is received following a valid deposit, it will be circulated to all States and if there are no objections within one year, it will be accepted in deposit.2. Modifications and withdrawals must be signed as well.

    Instruments are not deposited if lodged with UNOG, for example;Preferably if instruments are hand-delivered, mailed, faxed or e-mailed directly to the Treaty Section; Faxes accepted as long as they reproduce the signed original and with the understanding that the original will be transmitted without delay; E-mail accepted only if scanned image of signed instrument attached to the e-mail.

    1. President of Switzerland at Focus 2003 Treaty Event1. Treaty may specify that it will eif for the State 30 days after the date of deposit.UNCTOC and its 3 Protocols enter into force on the 90th day after the date of deposit of the 40th instrument of ratification, etc. 2. Kyoto Protocol 55 parties included in annex I which accounted for at least 55% of the total dioxide emissions for 1990)3. Provisional entry into force:Pursuant to provisions of a treaty;Treaty not in force definitevely;Enables States that are ready to implement the obligations under a treaty to do so among themselves without waiting for the conditions to be met for definitive entry into force;Once treaty enters into force provisionally, it creates obligations for parties that agreed to bring it into force in that manner;Terminates upon definitive entry into force.4. E.g.: International Coffee Agreement, 2001.1.Article 40 of VCLT;When looking at a treaty, you want to see if there have been any amendments or corrections;

    1. E.g.: Vienna Convention (Ozone), Montreal Protocol, Stockholm Convention, etc.)1. (E.g.: WHO, IMO, Wheeled Vehicle Equipment and Parts Agreement)1. Parties to parent treaty counted at the time of deposit of the acceptance of the amendment (moving target), if not otherwise specified.

    1. Protocol II, as amended CWC. Art. 54, VCLT covers withdrawal and denunciation. 2. To withdraw or denounce, a formal signed instrument is required.

    1. Art. 56 VCLT, 1969.1. Articles 54 and 59, VCLT)