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Multilateral Treaties Multilateral Treaties Deposited with the Deposited with the Secretary-GeneralSecretary-General

By Bradford C. SmithLegal OfficerTreaty SectionOffice of Legal Affairs

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How to Become Party to a Treaty?How to Become Party to a Treaty?

Signature Signature Consent to be boundConsent to be bound Referred to as “Simple Signature” subject to Referred to as “Simple Signature” subject to

ratification, acceptance or approvalratification, acceptance or approval

Definitive SignatureDefinitive Signature AccessionAccession Deposit of InstrumentsDeposit of Instruments Other Final ClausesOther Final Clauses

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SignatureSignature

When? When? What States and What States and

entities can sign?entities can sign? Who can sign on Who can sign on

behalf of a State?behalf of a State?

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SignatureSignatureWho can sign on behalf of a State?Who can sign on behalf of a State?

Heads of State Heads of State Heads of Heads of

GovernmentGovernment Ministers for Ministers for

Foreign AffairsForeign Affairs Acting or Acting or Ad InterimAd Interim

Head of State or Head of State or Government or Government or Minister for Foreign Minister for Foreign AffairsAffairs

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SignatureSignatureFull PowersFull Powers

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

FULL POWERSFULL POWERS..

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SignatureSignatureRequirements for full powersRequirements for full powers

A valid instrument of full powers must A valid instrument of full powers must contain the following elements:contain the following elements: Authorize signature; Authorize signature; Identify the treaty;Identify the treaty; Specify the name of the individual Specify the name of the individual

authorized to sign;authorized to sign; Issued and signed by either the Head Issued and signed by either the Head

of State or Government or the MFA or of State or Government or the MFA or by a person exercising the power of by a person exercising the power of one of the three authorities one of the three authorities ad interim;ad interim;

Dated Dated

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SignatureSignatureVenueVenue

Appointment for Appointment for signature in the Treaty signature in the Treaty SectionSection Facsimile No: (212) Facsimile No: (212)

963-3693963-3693 Phone No: (212) Phone No: (212)

963-5047963-5047 E-mail: E-mail:

treaty@un.orgtreaty@un.org

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SignatureSignatureTreaty EventsTreaty Events

Millennium Summit (2000)Millennium Summit (2000) Focus 2001: Women and Focus 2001: Women and

Children Children Treaty Event: Multilateral Treaty Event: Multilateral

Treaties on Terrorism (10 to Treaties on Terrorism (10 to 16 November 2001)16 November 2001)

Focus 2002: Sustainable Focus 2002: Sustainable Development Development

Focus 2003: Treaties Against Focus 2003: Treaties Against Transnational Organized Transnational Organized Crime and TerrorismCrime and Terrorism

Focus 2004: Treaties on the Focus 2004: Treaties on the Protection of Civilians Protection of Civilians

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Simple SignatureSimple SignatureLegal Implications Legal Implications

No positive legal obligations;No positive legal obligations; Indicates a State’s intention to express its Indicates a State’s intention to express its

consent to be bound; consent to be bound; Creates an Creates an obligationobligation to refrain in good to refrain in good

faith from acts that would be contrary to faith from acts that would be contrary to the object and purpose of a treaty (until it the object and purpose of a treaty (until it shall have made its intention clear not to shall have made its intention clear not to become a party to the treaty – art. 18 become a party to the treaty – art. 18 VCLT).VCLT).

No time limit for ratification.No time limit for ratification.

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SignatureSignatureReviewReview

Is the treaty open for signature?Is the treaty open for signature? Does the treaty allow your State to Does the treaty allow your State to

sign?sign? Who will sign?Who will sign? Are full powers required?Are full powers required? Appointment for signature.Appointment for signature.

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SignatureSignatureProblem 1Problem 1

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

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SignatureSignatureAnswer to Problem 1Answer to Problem 1

Open to Open to all Statesall States until 12 December 2002. until 12 December 2002. Names of officials who will be signing are Names of officials who will be signing are

specified;specified; Convention identified;Convention identified; Signature is valid (Deputy Minister and Signature is valid (Deputy Minister and

ACTING MFA);ACTING MFA); Dated;Dated; BUT: No authorization BUT: No authorization to signto sign the the

Convention.Convention.

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Consent to be BoundConsent to be Bound

To become party To become party to a treaty, to a treaty,

a State must a State must express its express its

consent to be consent to be bound bound

by a treaty at by a treaty at international international

law. law.

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Consent to be BoundConsent to be BoundHow?How?

Definitive Signature Definitive Signature Simple Signature Simple Signature

followed by followed by Ratification, Ratification, Acceptance or Acceptance or ApprovalApproval

AccessionAccession

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Consent to be BoundConsent to be BoundHow?How?

Succession Succession An undertaking at An undertaking at international international

law law whereby a whereby a State State assumes assumes the rights the rights and and obligations under obligations under

a treaty previously a treaty previously applied to its territory applied to its territory

by a predecessor by a predecessor State.State.

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Consent to be BoundConsent to be BoundDomestic “Ratification”Domestic “Ratification”

A State is not a party to a treaty by A State is not a party to a treaty by simply “ratifying” a treaty simply “ratifying” a treaty domestically;domestically;

States must ensure domestic States must ensure domestic legislative requirements are completed legislative requirements are completed prior to consenting to be bound;prior to consenting to be bound;

State cannot claim that its consent to State cannot claim that its consent to be bound is invalid due to violation of be bound is invalid due to violation of its internal law (VCLT, art. 46(1)). its internal law (VCLT, art. 46(1)).

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Consent to be BoundConsent to be BoundBasic requirements for a valid Basic requirements for a valid

instrumentinstrument Identify treatyIdentify treaty Declaration of undertakingDeclaration of undertaking

Expression of intent of the Government to be Expression of intent of the Government to be bound by the treaty and to undertake bound by the treaty and to undertake faithfully to observe and implement its faithfully to observe and implement its provisionsprovisions

Issued and signed Issued and signed Head of State or Government or the MFA Head of State or Government or the MFA

or by a person exercising the power of or by a person exercising the power of one of the three authorities one of the three authorities ad interim;ad interim;

DatedDated

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Consent to be BoundConsent to be BoundProblem 2Problem 2

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

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Answer to Problem 2-AAnswer to Problem 2-A

Amendment is open for “Acceptance” Amendment is open for “Acceptance” by States that are party to the by States that are party to the Convention;Convention;

Amendment is identified;Amendment is identified; Properly signed and dated;Properly signed and dated; BUT: No unambiguous expression of BUT: No unambiguous expression of

the State’s intent to be bound by the the State’s intent to be bound by the Amendment and to faithfully Amendment and to faithfully implement its provisions.implement its provisions.

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Answer to Problem 2-BAnswer to Problem 2-B

Assume that State has signed;Assume that State has signed; Convention is identified;Convention is identified; Properly signed;Properly signed; Not dated;Not dated; But: No unambiguous undertaking to But: No unambiguous undertaking to

be bound by the Convention and to be bound by the Convention and to faithfully implement its provisions.faithfully implement its provisions.

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Consent to be BoundConsent to be BoundAdditional requirements for a valid Additional requirements for a valid

instrumentinstrument

Optional DeclarationsOptional Declarations Mandatory DeclarationsMandatory Declarations NotificationsNotifications ReservationsReservations

Authorized?Authorized? Prohibited?Prohibited? Silent?Silent?

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Consent to be BoundConsent to be BoundOptional and Mandatory Optional and Mandatory

DeclarationsDeclarations Legally binding and must be Legally binding and must be

included in a duly signed included in a duly signed instrument of ratification, instrument of ratification, acceptance, etc. or signed in their acceptance, etc. or signed in their own right.own right.

Often such declarations must be Often such declarations must be made upon ratification, made upon ratification, acceptance, approval or accession. acceptance, approval or accession.

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Consent to be BoundConsent to be BoundOptional DeclarationsOptional Declarations

E.g.: E.g.: International Covenant on Civil and International Covenant on Civil and Political RightsPolitical Rights Article 41: Article 41: A State Party may A State Party may at any timeat any time

declare that it recognizes the competence of declare that it recognizes the competence of the Human Rights Committee to receive and the Human Rights Committee to receive and consider communications to the effect that a consider communications to the effect that a State Party claims that another State Party is State Party claims that another State Party is not fulfilling its obligations under the Covenant.not fulfilling its obligations under the Covenant.

E.g.: Article 36, paragraph 2 of the E.g.: Article 36, paragraph 2 of the Statute Statute of the ICJof the ICJ recognizing as compulsory the recognizing as compulsory the jurisdiction of the Court. jurisdiction of the Court.

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Consent to be BoundConsent to be BoundMandatory DeclarationsMandatory Declarations

E.g.: E.g.: OPCRC on the involvement of OPCRC on the involvement of children in armed conflictchildren in armed conflict Article 3(2) provides: Article 3(2) provides: Each State party shall Each State party shall

deposit a binding declaration upon ratification deposit a binding declaration upon ratification of or accession to this Protocol that sets forth of or accession to this Protocol that sets forth the minimum age at which it will permit the minimum age at which it will permit voluntary recruitment into its national armed voluntary recruitment into its national armed forces and a description of the safeguards that forces and a description of the safeguards that it has adopted to ensure that such recruitment it has adopted to ensure that such recruitment is not forced or coerced.is not forced or coerced.

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Consent to be BoundConsent to be BoundNotificationsNotifications

Notifications typically provide information as Notifications typically provide information as required under a treaty.required under a treaty.

Distinction between declarations and notifications Distinction between declarations and notifications is not always made.is not always made.

E.g.: E.g.: International Convention for the Suppression International Convention for the Suppression of the Financing of Terrorismof the Financing of Terrorism Article 7 (3): Upon ratifying, accepting, approving or Article 7 (3): Upon ratifying, accepting, approving or

acceding to this Convention, each State Party shall acceding to this Convention, each State Party shall notify the SG of the UN of the jurisdiction it has notify the SG of the UN of the jurisdiction it has established in accordance with paragraph 2 (Note that a established in accordance with paragraph 2 (Note that a State Party MAY establish jurisdiction over specified State Party MAY establish jurisdiction over specified offences in paragraph 2).offences in paragraph 2).

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Consent to be BoundConsent to be BoundNotificationsNotifications

E.g.: E.g.: International Convention for the Suppression of International Convention for the Suppression of Terrorist BombingsTerrorist Bombings Article 6(2) – Same notification as above.Article 6(2) – Same notification as above.

E.g.: E.g.: UNC Against Transnational Organized CrimeUNC Against Transnational Organized Crime Notification under art. 5 (3):Notification under art. 5 (3): States whose domestic law requires an States whose domestic law requires an

additional element than the offences established in accordance with the additional element than the offences established in accordance with the article must so notify the SG;article must so notify the SG;

Notification under art. 16(5):Notification under art. 16(5): For States that make extradition For States that make extradition conditional on the existence of a treaty, shall inform the SG whether they will 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 take this Convention as the legal basis for cooperation on extradition with other States Parties to this Convention; other States Parties to this Convention;

Notification under art. 18 (13):Notification under art. 18 (13): Designation of a central authority for Designation of a central authority for purposes of receiving mutual legal assistance;purposes of receiving mutual legal assistance;

Notification under art. 18 (14):Notification under art. 18 (14): Designation of language; Designation of language; Notification under art.Notification under art. 31(6):31(6): Designation of an authority that can assist Designation of an authority that can assist

other states in developing measures to prevent transnational organised other states in developing measures to prevent transnational organised crime.crime.

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Consent to be BoundConsent to be BoundReservationsReservations

ReservationsReservations A reservation is any statement - A reservation is any statement - however however

phrased or namedphrased or named - which purports to exclude - which purports to exclude or modify the legal effect of a treaty provision.or modify the legal effect of a treaty provision.

Legally binding and must be included in a duly Legally binding and must be included in a duly signed instrument of ratification, acceptance, signed instrument of ratification, acceptance, etc. or signed in their own right.etc. or signed in their own right.

Must be done upon signature or deposit. If Must be done upon signature or deposit. If done upon signature must be confirmed upon done upon signature must be confirmed upon ratification (exceptions).ratification (exceptions).

Modification/WithdrawalModification/Withdrawal

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Consent to be BoundConsent to be BoundReservationsReservations

Treaties silent as to reservations (Human Rights Treaties silent as to reservations (Human Rights treaties).treaties).

Certain reservations allowed/prohibited.Certain reservations allowed/prohibited. Reservations altogether prohibited (Stockholm Reservations altogether prohibited (Stockholm

Convention, Rome Statute).Convention, Rome Statute). Authorized reservations (settlement of disputes) Authorized reservations (settlement of disputes)

E.g.: Article 35 of the E.g.: Article 35 of the UNC Against Transnational UNC Against Transnational Organized CrimeOrganized Crime – – Each State Party may, at the Each State Party may, at the time of signature, ratification, acceptance or time of signature, ratification, acceptance or approval of or accession to this Convention, approval of or accession to this Convention, declaredeclare that it does not consider itself bound by that it does not consider itself bound by paragraph 2 of this articleparagraph 2 of this article (mandatory arbitration (mandatory arbitration and referral to ICJ).and referral to ICJ).

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Consent to be BoundConsent to be BoundReviewReview

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

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Consent to be BoundConsent to be BoundReviewReview

SignatorySignatory Ratification, Ratification, Acceptance or Acceptance or ApprovalApproval

Non-signatoryNon-signatory AccessionAccession Conditions for Accession?Conditions for Accession? Declarations/Notifications?Declarations/Notifications? Reservations?Reservations?

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Consent to be BoundConsent to be BoundProblem 3Problem 3

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

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Answer to Problem 3Answer to Problem 3

The OP is open for signature by any The OP is open for signature by any State that is a party to the Convention State that is a party to the Convention or or has signed ithas signed it (article 9); (article 9);

The OP is subject to ratification and is The OP is subject to ratification and is open for accession by any State;open for accession by any State;

The OP is specified;The OP is specified; Declaration of undertaking present;Declaration of undertaking present; Valid signature and date;Valid signature and date; But – Missing a mandatory declaration.But – Missing a mandatory declaration.

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Consent to be BoundConsent to be BoundProblem 4Problem 4

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

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Answer to Problem 4Answer to Problem 4

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

authorized. authorized.

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Consent to be BoundConsent to be BoundProblem 5Problem 5

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

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Answer to Problem 5Answer to Problem 5

To become a party to the Protocol, To become a party to the Protocol, State C must be a party to the State C must be a party to the Vienna Convention (art. 16 of Vienna Convention (art. 16 of Convention);Convention);

State C can succeed possibly or State C can succeed possibly or accede to Convention;accede to Convention;

It can then accede to the Protocol;It can then accede to the Protocol; Instrument is valid in all respects. Instrument is valid in all respects.

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Deposit of InstrumentsDeposit of InstrumentsPlace and MethodPlace and Method

Instruments become Instruments become effective only when effective only when deposited with SG at deposited with SG at UNHQ;UNHQ;

Personal delivery to the Personal delivery to the S-G or to his S-G or to his representative - the Legal representative - the Legal Counsel or the Chief of Counsel or the Chief of the Treaty Section;the Treaty Section;

By mail, by facsimile or By mail, by facsimile or by e-mail.by e-mail.

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Deposit of InstrumentsDeposit of InstrumentsPlace and MethodsPlace and Methods

Appointment for Appointment for deposit in the Treaty deposit in the Treaty SectionSection Facsimile No: (212) Facsimile No: (212)

963-3693963-3693 Phone No: (212) Phone No: (212)

963-5047963-5047 E-mail: E-mail:

treaty@un.orgtreaty@un.org Treaty EventsTreaty Events

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Deposit of InstrumentsDeposit of InstrumentsDate of DepositDate of Deposit

Date when instrument Date when instrument is received at UNHQ is received at UNHQ either by SG, the Legal either by SG, the Legal Counsel, the Treaty Counsel, the Treaty Section or by the Mail Section or by the Mail Unit;Unit;

Deposit will produce its Deposit will produce its effect in accordance effect in accordance with provisions of a with provisions of a treaty. treaty.

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Final ClausesFinal ClausesEntry into ForceEntry into Force

Treaties enter into force in accordance Treaties enter into force in accordance with their provisions:with their provisions: Upon a Upon a certain numbercertain number of States depositing of States depositing

instruments of ratification;instruments of ratification; A A specific timespecific time after a certain number of after a certain number of

States have deposited instruments of States have deposited instruments of ratification;ratification;

Upon a certain Upon a certain percentage, proportion or percentage, proportion or categorycategory of States depositing instruments of States depositing instruments of ratification;of ratification;

On a specific dateOn a specific date..

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Final ClausesFinal ClausesAmendmentsAmendments

A treaty may be amended in A treaty may be amended in accordance with its own accordance with its own provisions or in accordance provisions or in accordance with VCLT, 1969; with VCLT, 1969;

A treaty can only be amended A treaty can only be amended if it has entered into force.if it has entered into force.

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Final ClausesFinal ClausesAmendment Procedures Amendment Procedures

Proposal of amendments Proposal of amendments Proposals of amendments made by a State Proposals of amendments made by a State

Party and circulated by the relevant Party and circulated by the relevant secretariat of the treatysecretariat of the treaty

Adoption of amendments Adoption of amendments Amendments adopted by States Parties at Amendments adopted by States Parties at

conference (consensus/majority vote)conference (consensus/majority vote) Circulated by the depositaryCirculated by the depositary

Adopted amendments circulated by Adopted amendments circulated by depositary for formal acceptancedepositary for formal acceptance

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Final ClausesFinal ClausesAmendment Procedures Amendment Procedures

Proposal of amendmentsProposal of amendments Circulated by the depositaryCirculated by the depositary

Adopted by a two-thirds majority or Adopted by a two-thirds majority or deemed adopted if no contracting party deemed adopted if no contracting party objects within specified period following objects within specified period following date of circulation (11-B-16)date of circulation (11-B-16)

Enter into force for all contracting Enter into force for all contracting parties.parties.

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Final ClausesFinal ClausesEntry into Force of AmendmentsEntry into Force of Amendments

Upon certain number of States depositing Upon certain number of States depositing instruments of consent to be bound with instruments of consent to be bound with depositary;depositary;

A specific time after certain number of States A specific time after certain number of States deposited instruments of consent to be bound;deposited instruments of consent to be bound;

Upon certain percentage, proportion or Upon certain percentage, proportion or category of States depositing instruments of category of States depositing instruments of consent to be bound;consent to be bound;

On a specific date;On a specific date; No objection within a specified time frame and No objection within a specified time frame and

deemed adopted. Entry into force on date of deemed adopted. Entry into force on date of adoption. adoption.

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Final ClausesFinal ClausesLegal Implications of Legal Implications of

AAmendmentsmendments In accordance with a treaty’s provisions, an In accordance with a treaty’s provisions, an

amendment may, upon its entry into force, bind:amendment may, upon its entry into force, bind: Only those States that formally accepted the amendmentOnly those States that formally accepted the amendment

((results in two legal regimesresults in two legal regimes); or); or All States parties to the treatyAll States parties to the treaty (WHO, IMO, 11-B-16). (WHO, IMO, 11-B-16).

Where a State becomes party to a treaty which Where a State becomes party to a treaty which has been amended, it becomes has been amended, it becomes party to the party to the treaty as amendedtreaty as amended, unless otherwise indicated , unless otherwise indicated (see article 40(5)(a) VCLT 1969).(see article 40(5)(a) VCLT 1969).

The State is also a party to the unamended The State is also a party to the unamended treaty in its relation to States parties to the treaty in its relation to States parties to the unamended treaty.unamended treaty.

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Final ClausesFinal ClausesWithdrawal and DenunciationWithdrawal and Denunciation

Pursuant to the provisions of a Pursuant to the provisions of a treatytreaty

oror With the consent of all parties after With the consent of all parties after

consultation with other contracting consultation with other contracting StatesStates

Typically 12 months notice requiredTypically 12 months notice required

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Final ClausesFinal ClausesWithdrawal and DenunciationWithdrawal and Denunciation

If no provisions regarding withdrawal or If no provisions regarding withdrawal or denunciation, treaty NOT subject to denunciation, treaty NOT subject to unilateral withdrawal or denunciation unilateral withdrawal or denunciation unless unless Proven that parties intended possibility Proven that parties intended possibility

of withdrawal/denunciation; orof withdrawal/denunciation; or Right of withdrawal/denunciation Right of withdrawal/denunciation

implied by nature of treatyimplied by nature of treaty States wishing to invoke above carry States wishing to invoke above carry

burden of proof burden of proof At least 12 months notice.At least 12 months notice.

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Final ClausesFinal Clauses TerminationTermination

Pursuant to provisions of a Pursuant to provisions of a treaty;treaty;

By consent of all parties after By consent of all parties after consultation with other consultation with other contracting States;contracting States;

By subsequent treaty to which By subsequent treaty to which all parties of former treaty are all parties of former treaty are also party. also party.

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Copyright NoticeCopyright Notice

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