ST/LEG/7/Rev. 1 _______________________________________________________________________________________________ _______________________________________________________________________________________________
Para. 43 - The final sentence (starting at line 15) should be deleted. Para. 79 - The second sentence (starting at line 4) should read as follows: "However, a difficulty has occurred as to possible participation in treaties when entities which appeared otherwise to be States could not be admitted to the United Nations, nor become parties to the Statute of the International Court of Justice owing to the opposition of a permanent member of the Security Council." Para. 84 - Second sentence (at line 5) . After the word "Brunei", add the word "Darussalam". Para. 86 - The third sentence (starting at line 8) should be deleted. Para. 87 - Third sentence (line 6). After "2 April 1947" the remainder of the sentence should be deleted. Para. 89 - The third sentence (starting at line 12) should read as follows: "However, this is without effect on the capacity of the Federal Republic of Yugoslavia (Serbia and Montenegro) to participate in treaties deposited with the Secretary- General subject to any decision taken by a competent organ representing the international community of States as a whole or by a competent treaty organ with regard to a particular treaty or convention." Para. 97 - The penultimate sentence (starting at line 14) should read as follows: "Should entities in this category attain independence and become fully fledged States, their status will change accordingly." Paras. 176 (line 8), 178 (line 6) and 211 (line 3) - The word "passing" and "pass" should be followed by the word "judgement". Para. 297 should read as follows: "In the absence of provisions which set specific conditions for succession or which otherwise restrict succession, the Secretary-General is guided by the participation clauses of the treaties as well as by the general principles governing the participation of States (see chap. V) . The independence of the new successor State, which then exercises its sovereignty on its territory, is without effect on the treaty rights and obligations of the predecessor State in its own (remaining) territory. Thus, after the separation of parts of the territory of the Union of Soviet Socialist Republics (which became independent States) , the Russian Federation continued all treaty rights and obligations of the predecessor State. 170/ "* Para. 298 - The second sentence (starting on line 1) should read as follows: "Such was the case when the Czech Republic and Slovakia were formed upon the agreed dissolution of Czechoslovakia, which consequently ceased to exist." Annex XVII - Date of ratification: The date in the French text should read "(19 juillet 1994)." ____________ *The correction, inter alia, includes the deletion of the final two sentences of the original paragraph.
_________________ * The revised and updated version of this title originally appeared under the symbol ST/LEG/8.
1. The number of multilateral agreements deposited with the Secretary-General totaled 436 as at 31 December 1993. In addition, the Secretary-General also exercises the function of depositary with respect to the treaties that had been deposited with the Secretary-General of the League of Nations (see para. 36) . Thus, the Secretary-General is, on a worldwide basis, the principal depositary of treaties. Volume V of the Repertory of Practice of United Nations Organs, 1/ in the section dealing with Article 98 of the Charter of the United Nations, contains certain comments regarding the depositary functions of the Secretary-General. 2. The purpose of the present summary is to highlight the main features of the practice followed by the Secretary-General in this field in the daily exercise of his functions. A number of annexes follow the main body of the text, containing models of instruments, depositary notifications by the Secretary-General, etc. This volume supersedes the previous "Summary of practice of the Secretary-General as depositary of multilateral agreements" (ST/LEG/7). 3. Multilateral agreements do not remain static and the depositary is frequently required to solve problems that arise. Changes in the structure of States, the emergence of new States exercising full sovereignty and the establishment of a growing number of international organizations have also had repercussions in the field of multilateral agreements. 4. It will therefore be seen that the Secretary-General's practice has evolved over time as a result of efforts to find more satisfactory solutions in the light of experience or of actions by an organ of the United Nations or in response to comments from Governments. 5. The structure of the present summary follows the usual chronology of the functions to be performed by the depositary from the time of conclusion of the treaty. Each phase is dealt with in a separate chapter, where the problems involved, the solutions adopted and the current practice are described. 6. It must be borne in mind, however, that many of the various aspects of depositary functions are intimately interlinked. For example, full powers must emanate from those same authorities that validly establish instruments of ratification. Thus, while the specific aspects of full powers will be dealt with in one chapter, the practice and requirements concerning the deposit of instruments, as described in a subsequent chapter, also applies, mutatis mutandis, to full powers. In the same manner, the specific problems raised by successions to treaties will be discussed in one chapter, but the practice concerning the receivability and deposit of instruments on a general level, as described in the relevant chapter, also apply, mutatis mutandis, to successions. Another example of this interrelationship would be the case where the Secretary-General, as depositary, would have to refuse the deposit of an instrument when it includes reservations that are prohibited by the treaty. In that case, the practice on reservation, as described in the relevant chapter, would have an impact on the receivability of the instrument. Cross-references have therefore been inserted, but not exhaustively. The above-mentioned interrelations should therefore always be kept in mind. 7. Mention should be made of the publication Multilateral Treaties Deposited with the Secretary-General (ST/LEG/SER.E/-18). This is a yearly publication that gives the status of all such treaties as at 31 December of each year. This publication covers: (a) all multilateral treaties, the originals of which are deposited with the Secretary-General; (b) the Charter of the United Nations, in respect of which certain depositary functions have been conferred upon the Secretary-General (although the original of the Charter itself is deposited with the Government of the United States of America; c) multilateral treaties formerly deposited with the Secretary-General of the League of Nations or other depositaries, to the extent that subsequent formalities or decisions affecting them have been taken within the framework of the United Nations; and (d) certain pre-United Nations treaties, other than those formerly deposited with the Secretary-General of the League, which were amended by protocols adopted by the General Assembly of the United Nations. 8. In the publication, and for each treaty, participants are listed alphabetically, along with the dates of their signature and deposit of their instrument of ratification, accession, etc. The text of declarations, reservations and objections is also included after the list of participants. The same applies to communications of a special nature such as declarations recognizing the competence of committees such as the Human Rights Committee or the Committee against Torture and notifications under article 4 (3) of the Covenant on Civil and Political Rights, notifications of territorial application and related communications, including declarations with respect to objections. A number of notes to the present summary refer to the said publication, where the text of relevant reservations, objections, explanatory notes, etc., may be found. For the table of contents of the publication, see annex I. -2- Chapter II GENERAL ASPECTS OF DEPOSITARY FUNCTIONS A. Background 9. The practice of designating a "depositary" of multilateral treaties came into being as a result of the increasing number of parties to multilateral agreements. The General Assembly has not laid down a precise definition of the term "treaty". 2/ The Vienna Convention on the Law of Treaties, sometimes called "the Vienna Convention", 3/ in its article 2, proposes the following definition:
10. In the present summary, the term "agreement" shall be understood to mean a treaty, an "international multilateral agreement or convention", etc. Unless precluded by the context, the term "State" may also apply to an international organization when appropriate. As to the parties, a treaty may be concluded between States, and also between States and international organizations or between international organizations, as provided for in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. 4/ The term "international organization" is understood to mean an intergovernmental organization as provided for in article 1, paragraph 1 (1), of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character. 5/ Although those definitions were given within specific frameworks, they reflect the general consensus on the matter. When a multilateral treaty provided for its subsequent ratification, the relevant instruments by the parties were, in the past, "exchanged", as is the case with bilateral treaties. 11. In view of the
growing complexity of these procedures, the practice of designating a
"depositary" was initiated. The treaty was prepared and signed in one
copy only, which was entrusted to one of the parties, usually the State that had
hosted the Conference at which the treaty had been adopted; and this depositary
in turn prepared certified copies for all the parties. In addition, the
depositary, inter alia, verifies the acceptability of signatures and
instruments (or documents of a similar nature) and of related reservations,
declarations, etc., and duly informs the parties concerned, through depositary
notifications, of such actions, and also of the entry into force of the
treaties. B. Designation of the depositary and determination of his functions 1. General principles 12. The depositary is normally designated by the treaty. In the past, only States were depositaries. However, with the establishment first of the League of Nations and later of the United Nations and its specialized agencies, these and other organizations have been increasingly entrusted with depositary functions. -3- 13. As concerns the Secretary-General, a practice evolved concerning the specific methods and procedures according to which the Secretary-General, as depositary, would perform his duties, which could include customary functions not specifically provided for under the treaty concerned. In most of its aspects the Secretary-General's practice was in essence codified 6/ by relevant! provisions of the Vienna Convention on the Law of Treaties of 23 May 1969, which entered into force on 27 January 1980 3/ and to which 74 States were parties as at 31 December 1993. The Secretary-General's present practice, though differing somewhat from that described in the Convention (see annex II), does take into account the most relevant provisions of the Vienna Convention as regards the usual functions of a depositary. Accordingly, the parties to a number of subsequent treaties have therefore not considered it necessary specifically to list the various functions of the Secretary-General as depositary. Such a listing may not always be exhaustive in any event, and these parties have simply designated the Secretary-General as depositary, on the understanding that he would perform all necessary duties in line with past practice and as outlined ir the Vienna Convention. 14. As will be seen below, the Secretary-General, in the performance of his depositary duties, is guided by: (a) The provisions of the treaty; (b) Customary treaty law, including as it may be deemed codified by various conventions on the matter; c) The general principles flowing from pertinent resolutions or decisions of the General Assembly and other organs of the United Nations, specifically from General Assembly resolution 478 (V) of 16 November 1950. 2. Joint depositaries 15. In a few instances, for example, in the Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature in London, Moscow and Washington on I July 1968, 7/ several depositaries have been appointed jointly, but the Secretary-General has never shared depositary duties. 16. When it was contemplated that the depositary functions pertaining to the Customs Convention on Containers, 1972, might be exercised jointly by the Secretary-General of the then Customs Cooperation Council and the Secretary-General, the Secretary-General conducted a review of possible precedents. The only instance of depositary functions exercised "jointly" by the Secretary-General and another depositary appeared to be that of the Convention on the Privileges and Immunities of the Specialized Agencies, 8/ section 42 of which provides that States not members of the United Nations may accede in respect of an agency by depositing an instrument, either with the Secretary-General or with the head of the agency. Moreover, the "joint" depositary functions of a head of agency are limited to that specific agency. This provision was probably included for the same reasons as those that justified the "Vienna formula" see para. 79 below). In practice, the only time this provision was applied was when Nepal, prior to its becoming a member of the United Nations, deposited an instrument in respect of the World Health organization. 9/ Accordingly, the Secretary-General concluded that such a joint exercise of depositary function was not desirable since, apart from duplication of work, it might lead to unnecessary complications resulting from possible differences in the -4- depositaries, practice. It was accordingly decided that the existing practice in this respect should be continued. 17. Although the Secretary-General is the only depositary proper of the Convention on the International Maritime Organization, that Convention provides for a somewhat complicated procedure as regards the amendment of the Convention. The notifications of acceptance of amendments must be made not with the Secretary-General of the United Nations, but with the Secretary-General of the International Maritime organization, who then informs its members of the receipt of the notifications. However, the Secretary- General of the International Maritime organization must then also transmit the notifications of acceptance of the amendments to the Secretary- General of the United Nations, and it is only the formal deposit with the Secretary- General that produces a legal effect, thus demonstrating that indeed the Secretary-General is the only depositary of the Convention. 18. A somewhat similar situation exists as concerns the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms of 29 October 1971, 10/ where the Secretary-General does not himself notify States parties, by means of a depositary notification, of the actions (signature, deposit of instruments, etc.) taken by States in respect of the Convention, but instead informs the Director-General of the World Intellectual Property Organization, who is the one who notifies the parties. But here again, the Director -General of the world intellectual Property Organization acts in an ancillary fashion, since all depositary functions proper (custody of the original, issuance of certified copies, signatures, deposit of instruments, etc.) are performed by or with the Secretary- General. 19. It may also happen
that a treaty will provide that it shall be open for signature, usually for a
period of time, outside United Nations Headquarters. Thus, for example, the
Vienna Convention on the Law of Treaties was open for signature from 23 May 1969
to 30 November 1969 at the Federal Ministry of Foreign Affairs of Austria, and
only subsequently at United Nations Headquarters. Yet this authority to receive
signatures is also of an ancillary nature and not evidence of co-depositary
functions (see para. 116 below). 3. Transfer of depositary
functions 20. On the other hand, depositary duties initially entrusted to the Secretary-General have occasionally been subsequently transferred to another depositary under provisions of the agreement itself, such as paragraphs 19 c) and 20 of the Terms of Reference of the International Nickel Study Group. 11/ 21. Conversely, depositary functions entrusted to a State have been transferred to the Secretary-General. Thus, for example, the functions exercised by the French Government under the International Agreement of 4 May 1904 and the International Convention of 4 May 1910 for the Suppression of the White Slave Traffic and the International Agreement of 4 May 1910 for the Suppression of obscene Publications were transferred to the Secretary-General in accordance with Economic and Social Council resolution 82 (V) of 14 August 1947. The Secretary-General has also assumed the depositary functions previously performed by the Secretary-General of the League of Nations (see para. 36 below). -5- 4. Successive
depositaries of related treaties 22. A rather unique
situation has occurred in respect of the General Agreement on Tariffs and Trade.
The contracting parties had chosen the Secretary-General as depositary for the
General Agreement and for all subsequent related agreements and protocols of
accession to agreements, up to those concluded until 1 February 1955. As of that
date, all subsequent agreements were deposited with the Director-General of the
General Agreement on Tariffs and Trade. Thus, when a State now becomes a
contracting party to the General Agreement on Tariffs and Trade and
simultaneously a party to various agreements concluded under the auspices
thereof, the relevant instruments should be deposited, some with the
Secretary-General and the others with the Director General of the General
Agreement. In most cases, however, all instruments are in fact now handed to or
received by the Director-General of the General Agreement. Thus when instruments
relating to treaties deposited with the Secretary-General are received by the
Director-General of the General Agreement on Tariffs and Trade, he accordingly
advises the Secretary-General, who then acts as if the relevant instruments had
been received directly from the parties concerned. 5. Deposit with the
Secretary-General of the instruments of acceptance of amendments to the Charter
of the United Nations 23. A converse situation has occurred in the case of the Charter of the United Nations, the original of which is deposited with the Government of the United States of America (the State where the San Francisco Conference, at which the Charter was adopted, took place), as provided by Article 111 of the Charter itself, and not with the Secretary-General. The reason was that, at the time the Charter was adopted, evidently the United Nations was not yet in existence, and its Secretary-General could not consequently be entrusted with the functions of depositary in respect of the Charter. However, when the General Assembly, by resolutions 1991 A and B (XVIII) of 17 December 1963 on the question of equitable representation on the Security-Council and the Economic and Social Council, decided to amend Articles 23, 27 and 61 of the Charter and to submit the amendments for ratification by the States Members of the United Nations, the above-mentioned resolutions did not designate the authority with which the instruments of ratification of the amendments should be deposited (nor does the Charter of the United Nations itself). As indicated above, the Charter, in its Article 110, paragraph 2, does provide that the instruments of ratification of the Charter itself shall be deposited with the Government of the United States of America and that Government shall notify all the signatory States and the Secretary-General of each deposit, but there is no analogous provision relating to the deposit of instruments in respect of amendments. 24. As a general rule, unless a treaty provides otherwise, it is normally the responsibility of the depositary of the treaty to receive and communicate all instruments and notifications relating to that treaty, including the acceptance of amendments thereto. However, as concerns the Charter of the United Nations, precedents were established under which certain functions of a depositary nature, for which no express provision was made in the Charter, are performed by the Secretary-General. in particular, the Secretary-General acts as depositary of the instruments by which new Members accept the obligations contained in the Charter under its Article 4. He also acts as depositary of the declarations by which States not members of the Organization accept, under Article 93 of the Charter, the conditions set forth therein to become parties to the Statute of the International Court of Justice. -6- 25. The Secretary- General therefore considered that, in the circumstances, it might be appropriate for him to undertake the depositary functions as concerns the instruments in respect of the amendments to the Charter under Articles 108 and 109. The Government of the United States of America, which the Secretary-General consulted in its capacity as depositary of the Charter of the United Nations, concurred with that view. 26. Accordingly, the
Secretary-General invited Member States to transmit to him, for deposit, the
instruments of ratification of the said amendments adopted by the General
Assembly by resolutions 1991 A and B (XVIII) of 17 December 1963. 6. No official other than the
Secretary-General may be depositary; actual discharge of functions entrusted to
the office of Legal Affairs of the United Nations Secretariat 27. With respect to the
actual discharge of depositary functions, the position of the Secretary- General
is that all treaties concluded under United Nations auspices should be worded to
confer depositary functions on the Secretary-General himself only and not on any
subordinate official. It is then for him, as depositary, to decide which
subordinate official will actually perform these functions on his behalf. In
practice, the Secretary-General has assigned all his depositary functions to the
Office of Legal Affairs of the Secretariat because of the extreme importance
that those functions be performed in a legally correct and absolutely consistent
manner and that all information on United Nations treaties be available in and
published by one office. 12/ C. Acceptance of depositary functions by the Secretary-General 1. General Principles 28. The Secretary-General's policy, as concerns the acceptance of depositary functions, has been in principle to restrict the assumption of depositary functions to open multilateral treaties of worldwide interest, usually adopted by the General Assembly or concluded by plenipotentiary conferences convened by the appropriate organs of the United Nations, and to regional treaties that are drawn up within the framework of the United Nations regional commissions and are open for participation to their entire membership. 29. The reasons for this policy are as follows: (a) The task of the Secretary-General would be exceedingly burdensome if he were to act as depositary for all the many multilateral treaties, i.e., treaties concluded by more than two parties, concluded each year worldwide; (b) The United Nations should not replace the specialized agencies and other international organizations as depositary of multilateral treaties concerning their specialized fields; c) In the case of the most restricted multilateral treaties (i.e., those whose parties, generally few in number, are known from the outset, such as the treaties between the five countries of the Nordic Council or the treaties establishing the European Communities), the depositary responsibilities are so closely linked to the application of the substantive clauses that they could -7- hardly be exercised by any entity other than a party to the treaty or an organ established by the treaty;
(d) Lastly and even more importantly, one should not
exclude the possibility that a treaty, or its application by the parties, may be
contrary to United Nations policies or even to its internal or international
obligations or to other treaties of which the Secretary-General is the
depositary. Thus, for example, the Secretary-General has not accepted to be the
depositary of the agreement establishing the International Textiles and Clothing
Bureau, which appeared to be at variance with the objectives of the General
Agreement on Tariffs and Trade. 2. Exceptions 30. The acceptance of
depositary functions could possibly however be extended to treaties which, while
not meeting the criterion of universal participation or of participation open to
all members of a regional commission, would be concluded under the auspices of
the United Nations, i.e., treaties concluded within the framework of United
Nations organs or of diplomatic conferences convened by the United Nations. This
second accessory criterion would, in fact, usefully supplement the first. Since
treaties concluded within the framework of organs away from Headquarters are not
always submitted to the Secretary-General for prior approval and may have
provided for duties that he may feel he cannot accept, the Secretary-General
always reserves the possibility of making exceptions to the policy described in
paragraph 29 above. Indeed, it remains in any event within the discretion of the
Secretary-General to accept depositary functions for any multilateral treaty he
deems appropriate. 13/ Thus, for example, the Secretary-General has
accepted to be the depositary of the Articles of Association for the
Establishment of an Economic Community of West Africa 14/ and the
Agreement on the Conservation of Small Cetaceans and the Baltic and the Baltic
and Northern Seas of 17 March 1992, 15/ which were not concluded
under United Nations auspices and were open only to subregional participation. D. Extended scope of depositary functions 1. Distinction between
depositary and administrative functions 31. It should be noted that, in addition to depositary functions stricto sensu, a number of treaties also assign administrative functions to the Secretary-General, such as the drawing up and maintenance of a list of qualified jurists to act as conciliators in case of disputes (see Vienna Convention on the Law of Treaties, annex), or the transmittal to the parties to the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 16/ of communications concerning the final outcome of proceedings brought in respect of crimes under article 2 of the Convention. These functions, although not depositary, stricto sensu, have been performed by the office of Legal Affairs. However, other administrative duties related to the performance or the monitoring of a treaty, other than depositary duties, which are the responsibilities of the Secretary-General as chief administrative officer of the United Nations, have been entrusted to other competent Secretariat units. This is the case, for example, with communications under various conventions on human rights, under the Convention relating to the Status of Refugees, 17/ under the Convention on the Registration of Objects Launched into Outer Space, 18/ under the International Convention on the Suppression of -8- the Crime of Apartheid 191 or the United Nations Convention on the Law of the Sea. 20/ 32. By the same token, the convocation of subsequent conferences of the parties to a treaty is entrusted by the Secretary-General to the competent substantive Secretariat's units. Thus, a conference of the parties to the Convention against Torture held in 1992 was convened by the Centre for Human Rights of the Secretariat, which services the Conference. Similarly, the Review Conference of the Parties to the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Techniques (ENMOD Convention), held in 1984, was convened by the Department for Disarmament Affairs. However, proposed amendments to be considered by a review conference are circulated in a formal depositary notification and so is the corresponding decision of the Conference (see annex III). 33. The assistance and
services that the Secretary-General provides to review conferences in accordance
with requests to that effect by the General Assembly 21/ are of an
administrative nature, but cannot include soliciting participation in respect of
the treaty in question, which would not be consistent with the apolitical role
ascribed to depositaries under established international treaty law. Thus when
the Second Review Conference of the Convention on the Prohibition of military or
Any Other Hostile Use of Environmental Modifications Techniques (ENMOD
Convention) expressed the wish that the Secretary-General transmit a
communication encouraging greater accession to the Convention, 22/
the Secretary-General felt that it was not for him, as depositary, to make such
a call. 2. Providing legal opinions and
treaty information 34. As the principal depositary, the Secretary-General is frequently consulted on treaty questions, inter alia, in respect of final clauses, amendment procedures, participation and competence of meetings of States parties. Such opinions have been requested by United Nations bodies, 23/ by specialized agencies and other international organizations, including commodity organizations, by other units of the Secretariat and by scholars and law firms. The practice of the Secretary-General was also taken into account during the negotiation of the Vienna Convention on the Law of Treaties. 35. Upon request, the
Secretary-General, as depositary, provides up-to-date information on the status
of the treaties deposited with him (in addition to the circulation of the
publication Multilateral Treaties Deposited with the Secretary-General
(ST/LEG/SER.E/-), including to other units of the Secretariat that service
committees or meetings of States parties. Thus, for example, the Office of Legal
Affairs provides the up-to-date information for inclusion in the
Secretary-General's reports, such as his report 24/ to the Meeting of
States Parties to the Convention on the Elimination of All Forms of
Discrimination against Women, 25/ etc. E. Assumption of depositary
duties in regard to treaties deposited with the League of Nations 36. The League of Nations had been, before its performing functions "pertaining to a secretariat" in respect of various treaties. The General Assembly, with the consent of the Members of the United Nations that were parties to the said treaties, declared, by resolution 24 (1) part I A of -9- 12 February 1946, that it was willing to accept the custody of the said treaties and to charge the Secretariat of the United Nations with the task of performing, for the parties, the said functions, which in fact correspond to usual depositary functions. It was understood that this resolution constituted a general instruction to the Secretary-General to perform these functions, if and when States submitted instruments (ratification, withdrawal, etc.) or communications to him under these treaties. The Secretary-General would of course have to examine under the final clause of the treaties whether a State was eligible to do so. Moreover, the Secretary-General was to be guided in his actions by the practice of the Secretary-General of the League of Nations. 37. Inasmuch as a number of League of Nations treaties contained provisions whose execution depended on the exercise of certain functions or powers other than depositary functions, the United Nations decided to adopt various protocols to the said treaties, in order to allow for their continuing performance. Thus, under the Protocol signed at Lake Success on 11 December 1946 amending various such treaties, 26/ the Permanent Central Board and the Supervisory Body provided for in the said treaties were to continue their functions. -10- Chapter III ORIGINAL TEXT A. Preparation of the original 1. General principles 38. Multilateral treaties for which the Secretary-General acts as depositary are usually adopted under United Nations auspices, either by the General Assembly (e.g., the International Covenant on Civil and Political Rights) 27/ or by a Conference convened under a resolution adopted by the General Assembly (e.g., the United Nations Convention on the Law of the Sea) 20/ or under a resolution of the Economic and Social Council (e.g., the Convention on Road Traffic concluded at Vienna on 8 November 1968), 28/ although there have been a few exceptions (see para. 30 above) . Once the treaty has been adopted in accordance with established customary international law, as reflected in the Vienna Convention on the Law of Treaties, a text of the said treaty is prepared by the Secretary- General, so that it may be signed by the representatives of the parties (see chap. VI below). It is prepared on the basis of the text as authenticated by the Final Act of the Conference or the resolution of the General Assembly, or of the Economic and Social Council to which it is usually annexed, or by similar means. Once established, the Secretary-General retains custody of the said original. 39. In most cases, the
multilateral agreements concluded under the auspices of the United Nations
provide, in their final clauses, that they are open for signature by the
representatives of States either for an indefinite period of time (e.g., the
International Covenant on Civil and Political Rights) or until a certain date
(e.g., the International Natural Rubber Agreement, 1979). 29/
Ratification, when required, may take place either at any time thereafter or
until a set date. Some treaties are not opened for signature, but rather for
accession only, and in such cases it does not appear necessary to prepare an
original. Such is the case, for example, of the Convention on the Privileges and
Immunities of the United Nations, adopted by the United Nations General Assembly
on 13 February 1946, 30/ and the Convention on the Privileges and
Immunities of the Specialized Agencies, adopted by the United Nations General
Assembly on 21 November 1947. 8/ These cases, however, are
exceptional and normally an original must be established. 2. Authentic languages 40. A comparison of the authentic texts precedes the physical work of collating the articles, arranging their layout and checking the texts. In the case of agreements concluded under the auspices of the United Nations, the number of authentic languages varies with the body adopting them. In most cases, agreements approved by the General Assembly provide, in their final clauses, that the texts are authentic in all official languages, i.e. at present Arabic, Chinese, English, French, Russian and Spanish. Only very exceptionally does the agreement contain no provisions on the subject. If the resolution approving the agreement is also silent on the point, such as is the case, for example, with resolution 317 (IV) by which the General Assembly adopted the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, concluded at Lake Success, on 21 March 1950, 31/ the practice followed by the Secretary-General has been to consider as authentic all -11- official languages and to prepare the original accordingly. This practice was not, however, always followed: the Convention on the Privileges and Immunities of the United Nations is in English and French only. 41. In the case of agreements adopted by United Nations regional commissions, the authentic texts are generally in the official languages of the commission concerned. 42. Finally, there are the agreements adopted by conferences. These agreements are more diverse and the decision as to which text is to be authentic is made, in each case, by the participating States. For example, the text of the Olive Oil Agreement, 1986, 32/ is authentic not only in Arabic, English, French, Spanish, official languages of the United Nations, but also in Italian; the Agreement on the Conservation of Small Cetaceans in the Baltic and North Seas of 17 March 1992 is authentic not only in English, French and Russian, but also in German (the languages of the range States). 3. Multilingual title pages and signature 1pages 43. To the text of the treaty, in all its authentic languages, as adopted, the depositary adds a "multilingual" title page and "signature page" on which the names ("short names", i.e., the names used for all ordinary purposes in the United Nations) of the States concerned appear in all United Nations official languages in the English alphabetical order. These names are based on official communications from the Governments concerned as reflected in the United Nations Terminology Bulletin (ST/CS/SER.F/7). A special case occurred when the General Assembly, upon the recommendation of the Security Council, decided to admit a State to membership in the United Nations,
The name of that State in the relevant signature page of treaties prepared by the Secretary-General is accordingly the name indicated in the corresponding terminology note TR/93/3 of 19 April 1993. This, of course, could create a difficulty for the Government of that State, inasmuch as the name in question is not based, as is normally the case, on a communication from the Government concerned but on the above-mentioned decision, which left unsolved the difference over the name of the State. 44. It is to be underlined that while the "multilingual" title page is established in all the authentic languages, the signature pages of treaties deposited with the Secretary-General are prepared only in the official languages of the United Nations, i.e., in the six official languages of the United Nations for global agreements; and in the relevant languages of the regional commission for the regional agreements. The reason is that the establishment of signature pages in non-official languages might raise terminology and diplomatic difficulties which the Secretary-General, as depositary, would not be in a position to resolve (for example, the translation of the name "German Democratic Republic" into Russian gave rise, at the time, to differences of opinion. Although in that case the difficulty had to be resolved, since Russian is an official language, such a difficulty could arise in the case of any language). -12-
45. From time to time, the Secretary- General has also prepared, as provided for in the testimonium, of a treaty, an "additional" authentic text on the basis of other existing authentic texts. Such was the case for example with the Chinese text of the International Sugar Agreement, 1984 33/ and the International Tropical Timber Agreement; 34/ the testimonium of the later agreement reads as follows:
Upon a request from the International Trade Law Commission, the Secretary-General has also established an Arabic text of the Convention on the Limitation Period in the International Sales of Goods. 35/ These texts were circulated by the Secretary- General and considered adopted as authentic texts in the absence of objections thereto within the period of 90 days indicated by the Secretary-General in accordance with the implicit approval procedure (see para. 55 below; see also annex IV) . 46. A special situation occurred as concerns the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas. This Convention was initially adopted in English, as reflected in the Final Act, but on the understanding that the other languages' texts, which were also to be authentic, would be prepared by the Government of Sweden. At the request of that Government, the Secretary-General provided assistance in the preparation of those texts. But no implicit approval under the 90 days, procedure was implemented in this case by the Secretary-General, since the Secretary-General, as depositary, had not received instructions to that effect from the parties, which on the contrary, he understood, had consented that the additional text be considered as accepted without any additional formalities. 47. The Secretary-General
also establishes, when so requested, the text of an amended convention. Such was
the case for the Single Convention on Narcotic Drugs, 1961, as amended by the
Protocol of 25 March 1972 (see article 22 of the Protocol) 36/ and
for the Convention on the Limitation Period in the International Sales of Goods
as amended by the Protocol of 11 April 1980 (see article XIV (2) of the
Protocol). 37/ Although these amended texts were not to be opened for
signature, they were prepared and circulated by the Secretary-General in the
same manner as an original text (see annex V). B. Correction of errors or of a lack of concordance in the original of a multilateral treat 1. Identification of errors 48. In spite of the care taken in the preparation of original texts, corrections to the original text of a treaty may become necessary because of: (a) A physical error in typing or printing, spelling, punctuation, numbering, etc.; -13- (b) A lack of conformity of the original of the treaty with the official records of the diplomatic conference which adopted the treaty; and/or c) A lack of concordance between the different authentic texts constituting the original of the treaty. 49. It is the
responsibility of the depositary, who has custody of the original of the treaty,
to initiate the correction procedure or at the request of one or more of the
States that participated in the elaboration and adoption of the treaty. Each
apparent error must, of course, be thoroughly scrutinized by the depositary in
order to determine whether it does fall in one of the categories mentioned above
and further that it does not have the effect of modifying the meaning or
substance of the text of the treaty. In case of doubt - i.e., if in the
depositary's opinion the modification proposed does not seem wholly justified or
is opened to dispute - the depositary shall endeavour to persuade, through
consultations, the State which proposed the correction to withdraw its proposal;
in the last resort, the Secretary-General would refer the matter to the
contracting parties and the signatory States. 2. Communication of the
proposed corrections to States 50. Until 1964, the Secretary-General's practice was apparently not entirely consistent, the list of States which were to receive notification of proposed corrections being drawn up on an ad hoc basis, depending, for instance, upon whether the treaty was open for signature or was in force, whether the number of signatory States was large or small, whether certified copies had been circulated among States and whether there were at the time any contracting parties. The usual practice was apparently to communicate proposed corrections to all States that had signed or might sign the treaty: this method was followed, for example, in the case of the 1954 Convention relating to the Status of Stateless Persons and the 1956 Customs Convention on the Temporary Importation of Commercial Road Vehicles, but there were some cases where proposed corrections were more widely circulated, such as the proposed corrections to the Chinese text of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which were communicated to all States whether or not Members of the United Nations; or the proposed corrections to the 1948 Havana Charter establishing an International Trade Organization, which were communicated to all the States that had adopted the text of the convention. 51. Since 1964, the constant practice of the Secretary-General has been to communicate proposed corrections not only to signatory States but to all the States that participated in the elaboration of the treaty in question, which in practice means all States represented at the Conference or the meeting that adopted the treaty, and all signatory States and contracting parties. This practice was sanctioned by articles 26 and 27 of the International Law Commission's draft on the law of treaties, as adopted in 1962 at its fourteenth session: draft article 27 provided that "the depositary shall bring the error to the attention of all the States which participated in the adoption of the text and to the attention of any other States which may subsequently have signed or accepted the treaty ... 11. 38/ This procedure was followed on a number of occasions, for example in the case of errors in the original of the 1964 Agreement establishing the African Development Bank, and in that of the Convention on the Limitation Period in the International Sales of Goods and of the International Tin Agreement, 1975. Subsequently, the communication of the proposed correction was extended to all parties to which a treaty is open, so that all potential parties are made aware of the status of the treaty. It is to -14- be understood, however, that only signatories and contracting parties may object to the correction (see para. 58 below) . 52. It will be noted that
the practice of the Secretary-General differs in this respect from that in
article 79, paragraph 2, of the Vienna Convention, which provides for the
communication of proposed corrections only to the signatory States and to the
contracting States. 3. Procedure relating to the
acceptance of objections to proposed corrections 53. When studying the question of the acceptance of proposed corrections and of any objections to corrections to the original of a treaty, the International Law commission noted, in its report to the General Assembly on the work of its eighteenth session, 39/ that, if the matter was placed on the level of a right rather than simply of diplomacy, only contracting States should be considered as having an actual legal right to a voice in any decision regarding a correction. However, the practice of the Secretary- General, which in fact is the practice codified by the Vienna Convention, is also to accept objections from signatory States. This practice is based on the fact that a State which, by its signature, has bound itself to "refrain from acts which would defeat the object and purpose of a treaty" pending the entry into force of the treaty (see article 18 (1)) must be allowed to express an opinion on proposed corrections to a text that is in the process of being incorporated into its domestic law (for the legal effects of objections see paras. 61 and 62 below). 54. As concerns States
which are neither signatories nor contracting parties, when exceptionally such a
State objected to a correction, such as was the case when corrections were
proposed to the 1974 Customs Convention on Containers, the said objections were
communicated to all interested States for information, but were not considered
as valid for the purpose of rejecting the corrections. 4. Time-limit for objections to
proposed corrections 55. Objections to the correction of the original must be notified to the depositary within a certain period of time; article 79, paragraph 2, of the Vienna Convention provides that the depositary "shall specify an appropriate time-limit within which objection to the proposed correction may be raised". In accordance with customary international practice, the Secretary-General normally sets a time-limit of 90 days from the date shown on the notification (see annex VI). 56. If he receives an objection to the proposed corrections within the allowed time-limit, the Secretary-General so notifies the parties concerned, also by means of a depositary notification. If the objection is received after the time-limit has passed and cannot therefore have legal effects, the Secretary-General, as depositary, similarly informs the parties concerned of the receipt of the objection, which, however, he qualifies as "communication" and not "objection" in the relevant depositary notification. 57. It should be noted, that in establishing the time-limit for objections to proposed corrections, account will be taken of factual circumstances such as the nature and the number of proposed corrections, and whether or not the treaty is in force. The example may be cited of the corrections to the original of the 1962 Coffee Agreement. Because the errors were obviously typographical, and -15- because the usual time-limit of 90 days would have exceeded the period during which the treaty was opened for signature, the Secretary-General set a 30-day time-limit for objections. 58. During the period
specified by the Secretary-General, any interested State will be entitled to
raise an objection, either because it does not consider the proposed correction
justified or because it considers the correction procedure itself inappropriate.
For instance, a State may well consider the period allowed for stating its
position to be inadequate, or may, on the other hand, find it too long in view
of pressing domestic constitutional requirements. More importantly, a State may
object on the basis that a procedure for consultation by tacit consent is not
appropriate because the proposed correction would affect the substance of the
treaty and would therefore result in an indirect amendment, outside of the
prescribed amendment procedure. 5. Procès-verbal of correction
of the original 59. In the absence of
objections to the proposed corrections within 90 days, the corrections are
deemed adopted. The corrections (deletions, additions, etc.) are then physically
effected in the original and initialed by an authorized official, and a
corresponding proc4s-verbal of rectification circulated under cover of a
depositary notification. The proc&s-verbal, which is signed by the Legal
Counsel or the officer in charge of the office of Legal Affairs, indicates, in
substance, that the Secretary-General, acting as depositary and taking into
account errors in the original of the treaty, has duly circulated the text of
the proposed corrections; and that, in the absence of objections within 90 days
(or the relevant period), he has caused the said corrections to be effected in
the original, and these corrections also apply to the certified copies if the
copies have already been circulated (see annex VII). The proc6s-verbal is
normally dated as of the expiry of the 90 day period, i.e., the date when the
corrections have been accepted and on which the corrections should accordingly
be made. Owing to oversights, this practice has not always been followed, and it
has happened that the proc6s-verbal was dated the day it was physically signed. 6. Simplified Procedure 60. An exceptional procedure has been applied by the Secretary-General in respect of corrections to the texts of the Regulations annexed to the Agreement concerning the Adoption of Uniform Conditions of Approval and Reciprocal Recognition of Approval for Motor Vehicle Equipment and Parts of 20 March 1958. 40/ These Regulations are of a highly technical nature, with a vast amount of figures and formulas, and it happens not infrequently that typographical errors are discovered that require correction. Initially, when an error was discovered, the usual 90-day procedure was applied. However, taking into account, inter alia: (a) The frequent occurrence of errors being discovered after the entry into force of the Regulations (even a small typographical error would require a full-fledged procedure); (b) The amount of work involved in carrying out the correction procedure; c) The fact that only a limited number of States are parties to the Agreement, and that all are represented at the Working Party on the Construction -16- of Vehicles, a subsidiary organ of the Inland Committee of the Economic commission for Europe which is the forum in which the proposed required corrections are discussed and approved; and
(d) The non-existence of an original authenticated text of the
regulations in a true sense, since the Regulations are initially adopted by the
Working Party as a working document, it was
decided as of 1969 to dispense with the normal correction procedure and simply
to communicate to all parties concerned the text of the corrections as approved
by the Working Party, and to request that they make the appropriate corrections
in the Regulations (see annex VIII) . It must be underlined that this simplified
procedure, which is somewhat in the nature of corrections to certified copies
(see chap. IV) , is applied exclusively in the case of corrections to the
Regulations annexed to the above-mentioned Convention; and of course also that
the corrections must not be in the nature of an amendment, which could only be
effected in accordance with the relevant procedure. 7. Legal effects of objections
to Proposed corrections 61. Is an objection by one State sufficient to block a proposed correction? On this point, article 79, paragraph 2 (b), of the Vienna Convention provides that the depositary shall communicate the objection to the signatory States and to the contracting States, but this does not resolve the problem of the legal effects of an objection to a proposed correction of the original. The gap left in that respect by the Vienna Convention already existed in the International Law Commission's draft articles on the law of treaties (art. 25), a fact which did not escape the notice of some members of the Commission. 41/ In order to prevent the exercise of a kind of veto by the party raising the objection, would it not be desirable to provide that the dispute should be settled by the same majority as had been required for the adoption of the treaty? The matter was finally dropped on the ground that it was wiser not to confine States within a rigid system, but to let them settle any difficulties among themselves. In practice, the Secretary- General, acting as depositary, i.e., as the representative of all the parties to the treaty, has always obtained, through consultation, the withdrawal of the objections when appropriate. 62. The Secretary-General will of course always pursue this practice of consultation. In the event, however, that objections to proposed corrections would not be withdrawn, the Secretary- General might consider being guided by the suggestions made in that respect during the work of the International Law Commission in 1962, as described in paragraph 61 above. -17- CERTIFIED COPIES A. Purpose 63. Since only a single
original is established, it is the depositary's responsibility to prepare and
transmit to the States concerned certified copies of the said original. This
formality replaces the exchange of multiple original instruments that otherwise
would have to take place between all the negotiating parties. The certified
copies are normally used by Governments when submitting the agreement to their
competent organs for whatever approval action is required under their particular
constitutional procedures. B. Contents-and Preparation 64. Certified copies must
reproduce faithfully and in full the provisions of the original. Formerly, the
certified copies always included the final act, if any, of the Conference that
had adopted the treaty and also the signature pages. If the agreement was to
remain open for signature without any time-limit or if the date of closure was
distant, the certified copies were prepared with reproductions of the signatures
affixed up to the date on which the copies were prepared. However, under more
recent practice, normally only the text of the agreement is reproduced in the
certified copies. Final acts are included only when they contain substantive
provisions and the signature pages are no longer reproduced because, as
indicated above, additional signatures often continue to be affixed on the
original, even after the certified true copies are prepared, thus creating a
risk of confusion as to the signatories. Furthermore, the main purpose of
certified copies is to allow for the completion of internal formalities by the
parties and therefore inclusion of the signature pages is not necessary. In
fact, a number of additional copies of the certified true copies may have to be
reproduced by the parties, and signature pages are thus rather an inconvenience.
In fact, one State has already formally requested that certified true copies not
include signature pages. Finally, the complete text of the treaty, including the
signature pages, is published in the United Nations Treat Series upon its entry
into force, and the Secretary-General duly informs the parties of all signatures
as they are affixed. A number of other depositaries also establish certified
true copies without signature pages. C. Format of the certification 65. The format of the certification used for this purpose has been modified. originally, it was worded as follows: "Certified true copy. "For the Secretary-General:" followed by the signature of the Legal Counsel. 66. This formula was not considered fully satisfactory as the conformity of the copy with the original was merely implied. The date when the certified copy was established was also lacking. A more explicit formula has therefore been adopted. As affixed, for example, on the certified copies of the Sugar Agreement, 1984, it reads as follows: -18-
67. This formula appears
in English and French in two parallel columns at the end of the text of the
agreement. The signature of the Legal Counsel is affixed below and between the
two versions (see annex IX). D. Absence of an original text 68. The preparation of certified copies has presented some difficulty when no original text was drawn up. Such was the case of the Convention on the Privileges and Immunities of the United Nations 30/ and the Convention on the Privileges and Immunities of the Specialized Agencies,8/ which were adopted by resolutions of the General Assembly and which did not provide for their signatures but only for the deposit of instruments of accession (see para. 39 above). The Secretary- General, when required to provide certified copies of these conventions, transmits their text as it appears in the volume of the resolutions adopted by the General Assembly during the session concerned and certifies the authenticity of that document. This difficulty is of course avoided if the text adopted provides for the preparation of an authentic copy signed by the President of the General Assembly and by the Secretary-General (see for example art. 46 of the Revised General Act for the Pacific Settlement of Disputes, of 28 April 1949) . 42/ 69. A somewhat similar situation occurred when the Secretary-General was requested to prepare the texts of amended conventions (see para. 45 above). The Secretary-General prepared the said texts, as he would have for an original, and he duly circulated certified copies of the texts of the amended conventions with the appropriate certification attached. As appended to the corresponding convention, such certification reads as follows:
"For the Secretary-General,
"The Legal Counsel
-19- E. Recipients of certified
copies 70. Two certified copies are sent under cover of a depositary notification (see annex X) by the depositary to all States and entities which may become parties to the treaty, in accordance with the relevant provisions of the treaty (for a determination of such States and entities, see chap. V). 71. Since the certified
copies are thus printed in a limited number and owing, inter alia, to an
increase in the number of newly independent States and therefore of possible
participants to a treaty, it has been necessary, from time to time, to print new
editions of a number of certified copies. If there have been no corrections
either to the original or to the certified copies, the new printing simply
reproduces the first certified copies, including the initial certification. If,
however, corrections have been effected, they are included in the new edition of
the certified copies, and a new certification is established. F. Correction of errors 72. As is the case for originals, errors may occur in the certified copies of a treaty. The necessary correction of such errors is indicated by means of circular depositary notifications to the States concerned. Prior consent of those States to the correction of the certified copies is not required, since the original text is not involved. If the error did not occur when establishing the certified copies on the basis of the original, but existed initially in the original, which then has to be corrected (see paras. 48-62 and above), the corresponding depositary notification will specify that the correction - of the original - once deemed approved, shall also apply to the certified true copies (if already circulated). -20- Chapter V STATES AND INTERNATIONAL ORGANIZATIONS WHICH MAY BECOME PARTIES A. General principles 73. The Secretary-General must ascertain whether a State or an organization may become a party to a treaty deposited with him. many agreements do specify in their pertinent clauses which categories of States or organizations may become parties thereto. For example, the International Natural Rubber Agreement, 1987 43/ was open to the Governments invited to the United Nations Conference on Natural Rubber, 1983. The Convention on the Prevention and Punishment of the Crime of Genocide, concluded at Paris on 9 December 1948, 44/ is open to the participation of "any Member of the United Nations and of any non-member State which has received an invitation" from the General Assembly. 74. Other conventions, for example the Convention on the Declaration of Death of Missing Persons, 45/ have provided for the participation of non-member States upon the invitation of the Economic and Social Council or in their capacity as Parties to the Statute of the International Court of Justice. 75. Amending protocols are normally open only to the parties to the treaties that are being amended (see para. 254). 76. A very special case is that of the United Nations Convention on the Law of the Sea, 20/ article 305 of which specifies in great detail which entities may participate in the Convention and even contains an annex concerning the participation by international organizations: "Article 305 "Signature "1. This Convention shall be opened for signature by: "(a) all States; "(b) Namibia, represented by the United Nations Council for Namibia; "c) all self-governing associated States which have chosen that status in an act of self-determination supervised and approved by the United Nations in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters; "(d) all self-governing associated States which, in accordance with their respective instruments of association, have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters; "(e) all territories which enjoy full internal self-government, recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, -21- including the competence to enter into treaties in respect of those matters; 46/ "(f) international organizations, in accordance with annex IX." 77. Another special characteristic of the Convention on the Law of the Sea relates to its Final Act. Normally, the final act of a diplomatic conference is in the nature of a Procés-verbal and is signed by those concerned according to the capacity in which they participated in the conference. However, in the case of the Third United Nations conference on the Law of the Sea, signature of the Final Act also entitles those signatories that had not signed or acceded to the Convention itself to participate in the work of the Preparatory Commission as observers 47/ (see resolution I of the Conference, para. 2). This right was therefore of great importance to those entities mentioned in article 305, paragraph 1. of the Convention, particularly to those which were not qualified at the time to sign the Convention (for example, the Trust Territory of the Pacific Islands). 78. In fact, the
Conference not only adopted the text of the Convention, but also prepared and
approved the signature pages of the Convention and that of the Final Act. Thus,
when an international organization that had participated in the works of the
Conference but had not been included in the said signature pages of the Final
Act indicated its desire to-sign the Final Act, the Secretary-General declined
to accept the signature of that organization. The Secretary-General suggested to
that organization that a proposed correction be circulated under the 90 days
procedure (see para. 55 above), but that organization chose not to pursue that
option. B. The "Vienna formula"; the "all States formula"; the practice of the General Assembly 1. The "Vienna
formula" 79. But when a treaty is open to "States", how is the Secretary-General to determine which entities are States? If they are Members of the United Nations or Parties to the Statute of the International Court of Justice, there is no ambiguity. However, a difficulty has occurred as to possible participation in treaties when entities which appeared otherwise to be States could not be admitted to the United Nations, nor become Parties to the Statute of the International Court of Justice owing to the opposition, for political reasons, of a permanent member of the Security Council. 48/ Since that difficulty did not arise as concerns membership in the specialized agencies, where there is no "veto" procedure, a number of those States became members of specialized agencies, and as such were in essence recognized as States by the international community. Accordingly, and in order to allow for as wide a participation as possible, a number of conventions then provided that they were also open for participation to States members of specialized agencies. For example, the Vienna Convention on the Law of Treaties was opened for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention. This type of entry-into-force clause was called the "Vienna formula". 80. Thus, whenever a treaty specified, under the Vienna formula or otherwise, which entities could become parties thereto, the Secretary-General had no -22- difficulty in complying with the participation provision of the treaty concerned. 2. The "all States formula" 81. Nevertheless, a
number of treaties adopted by the General Assembly were open to participation by
"all States" without further specifications (see, for example, the
convention on the Suppression and Punishment of the Crime of Apartheid 19/
and the Convention on the Prevention and Punishment of Crimes against Diplomatic
Agents and Other Internationally Protected Persons) . 16/ In reply to
questions raised in connection with the interpretation to be given to all States
formula, the Secretary-General has on a number of occasions 49/,
stated that there are certain areas in the world whose status is not clear. If
he were to receive an instrument of accession from any such area, he would be in
a position of considerable difficulty unless the Assembly gave him explicit
directives on the areas coming within the "any State" or "all
States" formula. He would not wish to determine, on his own initiative, the
highly political and controversial question of whether or not the areas whose
status was unclear were States. Such a determination, he believed, would fall
outside his competence. He therefore stated that when the "any State"
or "all States" formula was adopted, he would be able to implement it
only if the General Assembly provided him with the complete list of the States
coming within the formula, other than those falling within the "Vienna
formula", i.e. States that are Members of the United Nations or members of
the specialized agencies, or Parties to the Statute of the International Court
of Justice. 3. The practice of the General
Assembly 82. This practice of the Secretary-General became fully established and was clearly set out in the understanding adopted by the General Assembly without objection at its 2202nd plenary meeting, on 14 December 1973, 50/ whereby "the Secretary-General, in discharging his functions as a depositary of a convention with an 'all States' clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession". 83. The "practice of the General Assembly", referred to in the above-mentioned understanding is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State even though it does not fall within the "Vienna formula". Such indications are to be found in General Assembly resolutions, for example in resolutions 3067 (XXVIII) of 16 November 1973, in which the Assembly invited to the Third United Nations Conference on the Law of the Sea, in addition to States at that time coming within the long-established "Vienna formula", the "Republic of Guinea-Bissau, and the "Democratic Republic of Viet Nam", which were expressly designated in that resolution as "States". -23- C. Applications of the practice of the General Assembly 1. Colonial countries upon
independence 84. Further decisions of the General Assembly, taken within the context of its deliberations on the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (see para. 264 below), noted with satisfaction the accession of various countries to independence. Such was the case, for example, with the decision concerning Brunei taken within the context of agenda item 18 at the thirty-eighth session. These decisions have been considered by the Secretary-General as allowing for the inclusion of those newly independent countries in the "all States" formula. 51/ 2. Cook Islands 85. The question of whether the Cook Islands was an "independent" entity, i.e. a State, was also raised. For a period of time it was considered that, in view of the fact that the Cook Islands, though self-governing, had entered into a special relationship with New Zealand, which discharged the responsibility for the external affairs and defense of the Cook Islands, it followed that the status of the Cook Islands was not one of sovereign independence in the juridical sense. Moreover, the General Assembly, in its resolution 2064 (XX) of 16 December 1965 on the question of the Cook Islands, had reaffirmed the responsibility of the United Nations "to assist the people of the Cook Islands in the eventual achievement of full independence, if they so wish, at a future date". That resolution, which was adopted in view of a change in the status of the Cook Islands, further indicated that the latter had not yet attained full independence within the meaning of the term in United Nations usage. 52/ It followed that, unless specifically invited to participate in a treaty, the Cook Islands could not invoke the "all States" clause. 86. However, in 1984, an application by the Cook Islands for membership in the World Health organization 53/ was approved by the World Health Assembly in accordance with its article 6, and the Cook Islands, in accordance with article 79, became a member upon deposit of an instrument of acceptance with the Secretary-General. In the circumstances, the Secretary-General felt that the question of the status, as a State, of the Cook Islands, had been duly decided in the affirmative by the World Health Assembly, whose membership was fully representative of the international community. The guidance the Secretary-General might have obtained from the General Assembly, had he requested it, would evidently have been substantially identical to the decision of the World Health Assembly. The same solution was adopted by the Secretary-General when Niue, in 1994, applied for membership in the World Health Organization. Moreover, on the basis of the Cook Islands, membership in the World Health Organization, and of its subsequent admittance to other specialized agencies (Food and Agriculture organization of the United Nations, United Nations Educational, Scientific and Cultural Organization and International Civil Aviation Organization) as a full member without any specifications or limitations, the Secretary-General considered that the Cook Islands could henceforth be included in the "all States" formula, were it to wish to participate in treaties deposited with the Secretary-General. -24- 3. Marshall islands 87. A similar situation
occurred in respect of the Marshall Islands. Upon its admission to the
International Civil Aviation organization, the Government of the Marshall
Islands indicated that it wished to participate in treaties deposited with the
Secretary- General. However, a difficulty existed in that, at the time, the
Marshall Islands was still under trusteeship under Security Council resolution
21 (1947) of 2 April 1947, and that, furthermore, there was some question as to
whether the procedures for admission of the Marshall Islands in the
International Civil Aviation organization had been fully observed. Admission
apparently had been effected on the basis of article 92 of the Chicago
Convention, which provides that States Members of the United Nations, associates
of the United Nations and States neutral in the Second World War could accede
simply by depositing an instrument with the United States of America, the
depositary. In all other cases, new members could be admitted, under article 93,
only by a vote of four fifths of the members of the International Civil Aviation
organization. The Secretary- General, in view of these ambiguities, decided that
he was not at the time in a position to act on instruments that would be
presented to him; it was possible that he would have to inform the Security
Council-and/or the Trusteeship Council. However, the matter was resolved when by
its resolution 683 (1990) of 22 December 1990, the Security Council determined
that, in the light of the entry into force of new status agreements, inter alia,
for the Marshall Islands, the objectives of the Trusteeship Agreement had been
fully attained and the applicability of the Trusteeship Agreement had
terminated. Furthermore, the Secretary-General was informed that there had been
no formal objections by the members of the International Civil Aviation
Organization to the admission to membership of the Marshall Islands in the
organization. 4. States not meeting the
"Vienna formula" requirements 88. In 1969, a State Member of the United Nations forwarded to the Secretary-General, as depositary, a communication from an entity calling itself a State and declaring that it was ready to accede to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 26 November 1968. 54/ No depositary action was taken since that entity did not meet the requirements of the "Vienna formula" provided for in the Convention (not to mention that the communication was not an instrument in due form). However, the said communication was circulated as a document as requested by the Member State. 55/ 89. A special difficulty arose upon the adoption of resolution 47/1 of 22 September 1992, by which the General Assembly considered that the Federal Republic of Yugoslavia (Serbia and Montenegro) could not continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations and therefore decided that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it should not participate in the work of the General Assembly; the resolution was interpreted by the Secretariat to apply to subsidiary organs of the General Assembly, as well as conferences and meetings convened by it. Consequently, the Federal Republic of Yugoslavia (Serbia and Montenegro), was not invited to participate in conferences convened by the Assembly (e.g., the World Conference on Human Rights). However, this was without effect on the capacity of the Federal Republic of Yugoslavia (Serbia and Montenegro) to participate in treaties, including those deposited with the Secretary-General. -25- D. United Nations Council for
Namibia 90. The question also
arose of the legal status of the United Nations Council for Namibia for the
purpose of its participation in treaties. The Council for Namibia was
established as a subsidiary organ of the General Assembly by resolution 2248
(S-V) of 19 May 1967. As a subsidiary organ, it was responsible to, and under
the authority of, the General Assembly in the same way as any other subsidiary
organ. Unlike other subsidiary organs, however, the Council functioned in a dual
capacity: as a policy-making organ of the General Assembly and as the legal
Administering Authority of a Trust Territory. This latter characteristic of the
Council distinguished it from other United Nations subsidiary organs and it
could, therefore, be considered an organ sui generis for certain
purposes. As the legal Administering Authority, the Council was expressly
endowed by the General Assembly with certain competences and functions to be
exercised on behalf of Namibia in terms comparable to that of a Government,
inter alia, to represent Namibia internationally. Even though South Africa
continued, at the time, to exercise de facto control over the Territory, the
essential element was that the Council had the de jure competence, inter
alia, to enact any necessary laws and recognitions. Indeed, the Council
became a party to many treaties deposited with the Secretary-General, such as
the Vienna Conventions on Diplomatic Relations and the United Nations Convention
on the Law of the Sea, as well as a party to the constituting acts of the Food
and Agriculture organization of the United Nations, the International Labour
Organization and the United Nations Educational, Scientific and Cultural
organization. E. Regional agreements 91. Difficulties have also arisen in respect of the participation in regional agreements adopted within the framework of the United Nations regional commissions (States that are not Members of the United Nations may nevertheless be granted full membership of a regional commission by the Economic and Social Council under Article 68 of the Charter). 92. Certain of these regional agreements provide that they are open, not only to the States members of the Commission, but also to regional economic integration organizations and to States having consultative status with the Commission (for the question of the general participation of international organizations in treaties see paras. 98 and 99 below). As concerns those States, the Secretary-General must ascertain whether they do have such a consultative status. 93. Such a case occurred when an entity born from the separation of Yugoslavia, and not yet a Member of the United Nations, expressed an interest in being admitted, in a consultative capacity, to the Economic Commission for Europe. Such an admittance would allow for its participation in treaties adopted within the framework of the Economic Commission for Europe such as the agreement concerning the Adoption of Uniform Conditions of Approval and Reciprocal Recognition of Approval for Motor Vehicle Equipment and Parts. 40/ Under paragraph 8 of the terms of reference of the Economic Commission for Europe, the Commission may admit, in a consultative capacity, European nations not Members of the United Nations. However, it was pointed out that paragraph 8 of the terms of reference should not be interpreted to mean that the Commission could make, on its own authority, determinations such as to the status of purported States. As is made clear in paragraph 1 of its terms of reference, the Commission acts within the framework of the policies of the United Nations and -26- subject to the general supervision of its parent organ, the Economic and Social Council. And further, that in accordance with a footnote to the word "State" in rule 72 (1) of the rules of procedure of the Economic and Social Council, "It is the understanding of the Economic and Social Council that in discharging its functions under this rule it will follow the practice of the General Assembly in implementing an all States clause, and that in all cases where it is advisable it will request the opinion of the Assembly before taking appropriate decisions". Since the entity concerned did not at the time meet the "all States" criteria, and even though the entity had been "recognized" by a number of States, it was decided that the entity concerned could not be admitted, even in a consultative capacity, which would preclude its participation in the Agreements concerned. 94. A somewhat similar
situation occurred when a non-European State, which was however a Member of the
United Nations, indicated its interest in becoming a party to the Convention on
the Contract for the International Carriage of Goods by Road, 56/ on
the basis of its article 42 (2), which provides that such countries as may
participate in certain activities of the Economic Commission for Europe in
accordance with paragraph 11 of the Commission's terms of reference may become
contracting parties to the Convention by acceding thereto after its entry into
force. But in that case it was confirmed that under the said provision and since
any State "may" participate in certain activities of the Economic
Commission for Europe, the Convention was in fact opened to all States, even
non-European, if admitted to participate in the relevant activities of the
Commission. F. Participation by
non-independent entities 95. Treaties may provide for the participation of entities other than independent States. Thus, for example, when the question of the accession of Southern Rhodesia to the Protocol of 1963 57/ for the prolongation of the International Sugar Agreement of 1958 58/ was raised, the Secretary-General recalled 59/ that, under its article 5 (4), the Protocol is "opened for accession by the Government of any Member of the United Nations or any Government invited to the United Nations Sugar Conference, 1963 ... ". Southern Rhodesia was not a Member of the United Nations, but the question was raised as to whether Southern Rhodesia's application for accession could be accepted as emanating from a "Government invited to the United Nations Sugar Conference, 1963". The legality of such an acceptance was questioned at the seventeenth session of the International Sugar Council, inter alia, on the ground that Southern Rhodesia was not an independent sovereign State. 96. In that connection, there could be no doubt as to the fact that Southern Rhodesia was not an independent State, and indeed the international status of Southern Rhodesia as a Non-Self-Governing Territory within the meaning of Chapter XI of the Charter was specifically confirmed by the General Assembly. 60/ However, in considering the question raised, account was also to be taken of the fact that on several past occasions contracting States to commodity agreements concluded under the auspices of the United Nations had accepted that Governments of areas that were not fully independent sovereign States should nevertheless be accepted as parties. Such was the case of the Federation of Rhodesia and Nyassaland, which was invited to several commodity conferences (e.g., the olive oil Conference of 1955, the Wheat Conference of 1956 and the Sugar Conference of 1956) and which was a party in its own name to the International Wheat Agreements of 1959 and 1962. The Secretary-General concluded that the Sugar Council, having been entrusted with the responsibility -27- of determining, in agreement with the acceding "Government", the number of the latter's votes in the Council, and having received broad functions "as are necessary to carry out the terms of the Agreement" (art. 28 (7)), the Council had sufficient authority to make the necessary determination as to the participation of Southern Rhodesia with regard to the Protocol under its paragraph 5 (4) . 97. There exist a number
of other cases where participation by entities other than independent States is
expressly authorized under specific provisions of the treaty. In some cases,
such entities are allowed to participate as "associate members" of an
organization, but it may also be that the nature of the membership is not
specified. There exist a number of examples of such participation by
non-independent entities: thus, for example, Hong Kong is a party to the General
Agreement on Tariffs and Trade and a member of the World Meteorological
organization; the Netherlands Antilles and Aruba are members of the Universal
Postal Union; and Macao is a member of the Asian and Pacific Development Centre.
61/ Such entities, which are not fully responsible for their own
international relations, are however therefore still considered by the United
Nations and the Secretary-General to be not fully sovereign independent states
and accordingly do not fall within the purview of the "all State"
clause and cannot participate in treaties open to "States". When such
entities, however, attain independence and become full-fledged States, their
status will change accordingly. Thus, for example, Brunei Darussalam, which was
an "associated member" of the Asia-Pacific Telecommunity 62/
became a member when, upon its independence, it deposited on 27 March 1986 an
instrument of accession to the Constitution of the Telecommunity. 63/ G. International organizations 98. Finally, there is the question of the participation of international organizations in treaties. The Vienna Convention on the Law of Treaties between States and International Organizations or between International organizations, 3/ concluded on 21 March 1986, in essence codified the practice on the matter and is modeled on the Vienna Convention on the Law of Treaties, although of course with the features made necessary by the specificity of international organizations. Participation by international organizations depends, as for States, upon the relevant provisions of the treaty. However, certain treaties which cannot be implemented by international organizations by reason of their nature and of the consequential absence of competence of international organizations in their respect are not open to international organizations. Such is the case, inter alia, of the human rights conventions. Conversely, a number of multilateral treaties concerning commodities, fishing, trade, etc., are open to international organizations. The treaty usually identifies the organizations to which participation is open or specifies the characteristics and competence that the organization must possess. Thus, for example, the International Coffee Agreement, 1976, 64/ provides in its article 4, paragraph 3: "Any reference in this Agreement to a Government shall be construed as including a reference to the European Economic Community, or any intergovernmental organization having comparable responsibilities in respect of the negotiation, conclusion and application of international agreements, in particular commodity agreements." -28- in the same fashion, article 24 of the Convention for the Protection of the Mediterranean Sea against Pollution of 16 February 1976, 65/ deposited with the government of Spain, provides that the Convention and protocols:
Equally, article 4 of the International Cocoa Agreement, 1975, 66/ provides as follows:
99. Some treaties provide that organizations may become parties to a treaty only if its constituting member States are already parties to the treaty. Thus, the first paragraph of article VIII (a) of the Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 22 November 1950 concluded at Nairobi on 26 November 1976, 67/ provides as follows: "VIII
Accordingly, the Secretary-General felt that he
was not in a position to accept the signature of the Protocol by the European
Economic Community until all its constituting members had themselves become
parties to the Protocol. H. Liberation movements 100. In response to separate requests from two national liberation movements, addressed to the Secretary-General in his capacity as depositary of the International Coffee Agreement, 1968, 68/ with regard to membership in the International Coffee Organization, the Secretary-General's position was that membership in the International Coffee Organization and other matters relating to the organization were governed by the provisions of the International Coffee Agreement. Aside from the depositary functions which he exercises with respect to the Agreement, the Secretary-General has no authority with respect to the Agreement which established the organization. Article 3 of the Agreement provides for membership in the organization of contracting parties and their dependent Territories; where a dependent Territory achieves independence, article 65 of the Agreement provides for the procedural steps to be followed in -29- order for the Government of such a Territory to assume the rights and obligations of a contracting party. In the absence of recognition accorded by the members of the international community, that is to say action taken by a political organ of the United Nations or one of the specialized agencies, the Secretary-General has no authority to grant recognition to a Government. Once such recognition is accorded by the members of the international community, however, the Secretary-General would, in accordance with the provisions of article 65 of the Agreement, fulfil his depositary functions. 69/ -30- FULL POWERS AND SIGNATURES A. Authorities representing the State without full powers 101. In accordance with
recognized customary international treaty law, as codified by the Vienna
Convention on the Law of Treaties, 3/ only heads of State, heads of
Government and Ministers for Foreign Affairs (referred to hereinafter as
"qualified authorities") are, by virtue of their functions, and
without having to produce full powers, considered as representing their State
for the purpose of performing all acts relating to the conclusion of a treaty,
including their signature with or without reservations (see article 7 (2) (a) of
the Convention). All individuals other than these authorities must produce full
powers, inter alia, to sign treaties or make certain notifications, etc.
(see paras. 104-107 and 110 below). B. Authorities issuing the full
powers: specific and general full powers 102. Full powers must be issued and signed by one of the three qualified authorities listed above and must unambiguously empower the representative of the Government concerned to sign the treaty or treaties covered by his full powers. But there is no systematic verification of the authenticity of the signature of the authority, since the full powers are most generally produced by the permanent representative duly accredited to the United Nations. Usually the full powers are limited, in that they specify the treaty or treaties in respect of which the full powers are granted (see annex XI). However, full powers may also be "general", i.e. full powers that do not specify the treaty to be signed, but rather authorize the representative to sign all treaties of a certain kind, most often all the treaties adopted by an organization. Thus, some permanent representatives to the United Nations are in possession of such general full powers to sign all agreements adopted by the General Assembly and deposited with the Secretary-General; these full powers are either included in their credentials to the United Nations or contained in a separate instrument (see annex XII). Representatives to conferences convened under the auspices of the United Nations for the purpose of preparing specific agreements are also frequently given general full powers with respect to all agreements which may be adopted during the conference or any of its sessions (see also para. 109 below). 103. It must be
underlined, however, that full powers, whether specific or general, must be
granted to a given individual and indicate his name and surname. Full powers
given, for example, "to the permanent representative" of a State to
the United Nations cannot be accepted. By the same token, valid full powers
given to the permanent representative duly identified by his name, cannot be
used by his deputy or by the permanent representative ad interim. C. Formalities for which full
powers are require 104. Full powers are most frequently granted to allow for the signature of a treaty and, where appropriate, to make related declarations or reservations at that time. The declarations or reservations should in principle be inserted in the original of the treaty together with the signature. However, for practical reasons, the text of the said declarations and reservations are almost always -31- (except on occasions for the short and frequent reservation "signature affixed subject to ratification") handed out to the depositary at the time of signature, on the understanding that such declarations or reservations are deemed to accompany the signature. The Secretary-General, as depositary, when informing the parties concerned of the signature, will of course also include the texts of the declaration or reservation (see annex XIII). 105. Full powers are also required for all persons other than the three qualified authorities, and even for permanent representatives to the United Nations, to make declarations or notifications in the nature of binding instruments that would extend or modify the commitments of a participant, such as a notification of provisional application, territorial extension, declarations made under Article 36, paragraph 2, of the Statute of the International Court of Justice recognizing as compulsory the jurisdiction of the Court, etc. (see para. 149). This practice takes into account the importance of these notifications or declarations, which are as binding on the State as would be an instrument of accession. 106. It should be noted that, even for signatures affixed ad referendum, the plenipotentiaries of the Governments concerned must also submit full powers, and in that respect no distinction has been made between a signature made ad referendum and one affixed subject to ratification (see also para. 112). 107. It is not necessary,
however, to produce full powers simply to deposit an instrument or a
notification duly signed by one of the three qualified authorities, especially
when the deposit is effected by the permanent representative or a member of the
permanent mission to the United Nations or under cover of an official note. D. Verifications 108. Before accepting the full powers, the Secretary-General must ascertain whether the State concerned is among those which may become a party to the agreement. If it is not, the fact that a representative has full powers does not entitle him to sign. As discussed in Chapter V above, the depositary must therefore first verify that, under the relevant provisions of the agreement, the State represented by the plenipotentiary submitting his full powers is in fact among those entitled to become parties. 109. The fact that a representative is qualified to participate in the deliberations of and to vote in an international organization because he is accredited to that organization or to vote in a conference because he has been granted credentials to do so only entitles the representative to adopt the text of the treaty prepared by that organization or conference and to sign the final act, if one is prepared, but does not entitle him to sign the treaty itself unless, in addition to being accredited or having credentials, he also has been granted full powers expressly authorizing him to do so or unless he is in possession of corresponding general full powers. The credentials to participate in the elaboration and adoption of a treaty and full powers to sign it may of course be contained in a single document, as long as there is no question that the representative has been authorized to sign the treaty. 110. The depositary must then verify that the person who signed the full powers was one of the three qualified authorities to do so. In that respect, the procedures outlined in chapter VII concerning instruments of ratification, acceptance, approval or accession apply, mutatis mutandis. -32- 111. The depositary must also make sure, in the interest of the State concerned, as well as in that of the other contracting States, that the signatory does not exceed his powers. This verification is especially important since, while in most cases the signature is subject to subsequent ratification, the signature may, if the treaty so provides, bind the State concerned. It is therefore ,necessary in every case for the Secretary -General to verify the nature and scope of the powers issued to the representative before the latter signs the treaty and, inter alia, to ascertain whether the signature is or is not subject to ratification. 112. As concerns signatures ad referendum, the Secretary-General has accepted such signatures even when that procedure was not expressly provided f or by the treaty. An example of a treaty which expressly provides for signature ad referendum is the statute of the International Centre for Genetic Engineering and Biotechnology. 70/ In most cases, these signatures ad referendum are not expressly confirmed stricto sensu, as provided for by article 12 (2) (b) of the Vienna Convention on the Law of Treaties, 3/ but rather implicitly by the subsequent deposit of an instrument of ratification. Indeed, it would appear that the use of the term "ad referendum" is for a number of States a reference to the need to "refer" the treaty for approval to their legislative bodies prior to-its ratification. 71/ As indicated above, the Secretary-General accepts such signatures ad referendum even when no provisions exist in the treaty in that respect and treats them simply as signatures subject to ratification. 113. If the treaty provides expressly that signature must be followed by ratification or acceptance, it is not necessary for the full powers or the plenipotentiary to specify that the signature is effected subject to ratification. 114. The signature of the plenipotentiary is to be affixed opposite the name of the State in the space reserved for the purpose on the original (for the particulars of the signature pages, see para. 43). It is desirable that the signature be dated whenever the signing does not take place on the day on which the agreement is first opened for signature, although when because of an oversight such a date is not indicated, the signature is perfectly valid, and the date of signature is then duly indicated by the depositary in all relevant notifications and publications. 115. The initialing of a treaty is one of the means by which its text can be authenticated (for the authentication of the text of multilateral treaties deposited with the Secretary-General, see para. 38). Unless the treaty provides otherwise, the procedure for the expression of consent to be bound by a treaty -as distinct from the authentication of its text - involves the full signature of the treaty, and possibly its subsequent ratification, and cannot be replaced by or equated with the mere initialing of the treaty. E. Opening for signature 116. Some treaties do not provide for their signature, but rather for the deposit of instruments of acceptance. Such is the case for the Conventions on the Privileges and Immunities of the United Nations and of the Specialized Agencies and also for a number of amending Protocols. When treaties provide for their signature, they then specify the place and the period of time where signatures are to be affixed; and the Secretary-General complies with these provisions and advises the parties concerned accordingly (see annex XIV). Very frequently, treaties are opened for signature at the Headquarters of the United -33- Nations. Thus, for example, the International Convention against the Taking of Hostages of 17 December 1979 72/ was opened for signature at Headquarters. But treaties may also be open for signature elsewhere, most often at the place of the meeting of the Conference which adopted the treaty. Thus, the Customs Convention on the International Transport of Goods under Cover of TIR Carnets (TIR Convention) of 14 November 1975 73/ was opened for signature at Geneva. The treaties may also specify the period of time they will be open for signature. Some treaties, for example most treaties on human rights, remain open for signature indefinitely; others provide for a set period. Thus, for example, article 65 of the International Cocoa Agreement, 1975, 66/ provides as follows: "Article 65 "Signature
In such cases, the Secretary-General does not accept signatures after the closing date, but indicates to the State concerned the other means of participation, such as accession, when applicable. 117. In the example above, the treaty is open only at a single location, at United Nations Headquarters in New York. However, other treaties have provided for signatures to be affixed in two locations, usually in a successive fashion. Thus, article 81 of the Vienna Convention on the Law of Treaties 3/ provides as follows: "Article 81 "Signature
In such cases, the original is temporarily entrusted to the entity which is to receive the signatures initially and is subsequently transferred to United Nations Headquarters. As indicated in paragraph 19, such responsibility is of an ancillary nature, and the entity which is to receive signatures during the initial period conforms, in that respect, to the practice of the Secretary General, as depositary. On a practical basis, that entity immediately informs the Secretary-General of any signature affixed and transmits to him the text of any related reservations or declarations. The Secretary-General, as depositary, upon the receipt of this information, and after having proceeded with the required verification, circulates the relevant notifications, as he would if the formality had been accomplished at Headquarters. 118. A special case is that of the 1982 Convention on the Law of the Sea, 20/ which was exceptionally opened simultaneously at Montego Bay and at New York under the provisions of paragraph 2 of its article 305, which reads as follows: -34- 112. This Convention shall remain open for signature until 9 December 1984 at the Ministry of Foreign Affairs of Jamaica and also, from 1 July 1983 until 9 December 1984, at United Nations Headquarters in New York." Under this provision, the Secretary-General prepared a duplicate set of signature pages, which was entrusted to the Jamaican Ministry. During the period of simultaneous opening, a number of signatures were affixed in Kingston, and upon the closing of the signature there, the duplicate set of signature pages was returned to the Secretary-General. 119. During the period when, under the provisions of a treaty, its signature is open at Headquarters, the original is not to be removed therefrom. An exception has been made to that principle under very special circumstances, and for a very few days, in order to facilitate the signature of a treaty, when it was anticipated that signatures would be affixed during the convening of a conference on matters related to the treaty, which was held away from Headquarters. Nevertheless, the Secretary- General has clearly indicated that such exceptions should be discouraged, inter alia, so as not to run the risk of losing the original. -35- Chapter VII DEPOSIT OF BINDING INSTRUMENTS 120. T he common feature of
these instruments, whether they be instruments of ratification, acceptance,
approval or accession or notifications of provisional application, territorial
application, application to additional entities, etc., is that their deposit
with the Secretary-General binds the State concerned. That State is then
included among the parties, or its treaty action duly recorded. The
Secretary-General thus must make sure, first, that the treaty is open to
participation by the State concerned (see chap. V) and then that the instrument
submitted is correct as to form and contents (for an unusual case of
"implicit" acceptance to be bound, see para. 240). It is to be noted
that the following presupposes the issuance of full powers (see chap. VI). A. Issuing authorities 1. General Principles 121. Recognized international practice is for such instruments to be issued and signed, as is the case for full powers, either by the head of State or Government or by the minister for Foreign Affairs. 122. The actual title of these qualified authorities may, of course, differ according to the States' Constitution or legislation: President of the State, King or Queen, Grand Duke, Prince, Chairman of the Provisional National Defense Council, Prime Minister, Secretary of the People's Bureau for Foreign Affairs, Minister for External Relations, etc. As long as there is no ambiguity as to the signatory being one of these qualified authorities, an instrument signed by one of them will be deemed valid. An instrument may, of course, also be signed by another official, such as the permanent representative to the United Nations, but on the condition that he produces valid full powers to that effect duly signed by one of the qualified authorities. 123. However, an
instrument signed for example by the "Vice-Minister for Foreign
Affairs" is not acceptable unless it clearly appears that he is in charge
of the Ministry ad interim or otherwise. By the same token, instruments signed
by a minister other than the Minister for Foreign Affairs, for example an
instrument signed by the Minister for Foreign Trade, will not be accepted, even
if the subject-matters of the treaty would internally fall within the competence
of that minister. The Secretary-General would, however, accept such an
instrument if it was accompanied by a declaration by one of the three qualified
authorities witnessing that under the legislation of his State the Minister in
question is authorized to bind the State in respect of the treaty concerned (see
annex XV). 2. State representing another
State 124. A special situation exists when States are linked by a treaty that provides that one of them shall represent the other (or others) in certain fields of international treaty relations. Examples of this situation can be found within the framework of the Convention of 25 July 1921 for the establishment of the Belgo-Luxembourg Economic Union 74/ and the Customs Union Treaty between Switzerland and Liechtenstein of 29 March 1923 75/ and subsequent arrangements thereto. The question that then arises is to what extent the Secretary-General, -36- as depositary, is to accept instruments emanating from the Government of a State that declares that it represents one or more other States by virtue of a Union treaty or similar agreement between the latter and the State or States in question. 76/
126. Similarly, the Protocol for the continuation in force of the International Coffee Agreement, 1968, as extended, was signed by Belgium on behalf of Luxembourg on the strength of full powers issued by the Belgian Government on behalf of Belgium and the Grand Duchy of Luxembourg pursuant to article 31 of the Consolidated Convention instituting the Belgo-Luxembourg Economic Union. 127. However, the Secretary-General has come to the conclusion that, although there is little likelihood that a State would attempt to act on behalf of another without the valid legal support of a treaty or an act of similar nature, it still seems dangerous to treat as binding on a Government an act for which it has not itself explicitly accepted responsibility. Accordingly, the Secretary-Generall's practice is now in principle to request confirmation from the other State (or States), that it recognizes as valid the action taken on its behalf by the "representing" State. However, for Belgium-Luxembourg and for Switzerland-Liechtenstein, and in order to avoid burdensome and unnecessary formalities, the -37- Secretary-General has accepted a general
statement from Luxembourg and Liechtenstein confirming to the Secretary-General
the existence and validity of the treaties respectively with Belgium and
Switzerland, and requesting that, until further notice, all acts by the
"representing" State on their behalf in respect of treaties in domains
such as commodities and customs be considered valid and binding on them. In case
of doubt, the Secretary-General would, of course, request a specific
confirmation. B. Form and contents of the
instruments 128. There are no established forms for instruments. They may be formal instruments, such as "instrument" of ratification or of accession (see annex XVI), but the Secretary-General, as depositary, will also accept less formal documents such as letters, notifications, etc., on the condition that the requirements for their validity are met. In order to be considered valid and to be accepted by the Secretary-General, the instrument must be duly signed as indicated above. Unsigned instruments in the form of notes verbales, even bearing the seal of the Ministry or of the Presidency, are not acceptable. Some flexibility however has been shown in exceptional circumstances, especially when time-limits for participation or signature were about to expire. In such cases, the Secretary-General has exceptionally accepted letters from the permanent representative to the United Nations, accompanied by the original of a cable from one of the three qualified authorities unambiguously and expressly instructing the permanent representative to bind the State and confirming that the relevant instrument had been duly signed and was being forwarded. Such exceptional acceptance by the Secretary-General of a "non-authentic" instrument is effected only on the absolute understanding that the instrument proper is to be handed to the Secretary-General within a very few days and that, failing that, the deposit would be annulled. with the increasing use of facsimile machines, this practice has been extended to, and practically replaced by, the acceptance of facsimile copies of the original instrument, but always on the basis of exceptional urgency and of the due and prompt receipt of the original. The instrument must also indicate the title of the signatory and the date and the place where the instrument was issued. The treaty concerned must also be reproduced either in full or - and this is the most frequent situation - be clearly identified (title, place and date of conclusion, etc.). 129. When required, the instrument must specify the scope of its application. Thus, for example, section 43 in article XI of the Convention on the Privileges and Immunities of the Specialized Agencies 8/ provides as follows: "Section 43
When the Secretary-General receives an instrument that does not specify to which specialized agencies the State concerned will apply the Convention, the Secretary-General informs that State that the instrument will be kept in abeyance until the said agencies are duly designated. A similar situation -38- exists in respect of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, and protocols, concluded at Geneva on 20 October 1980. 78/ Under the provisions of its article 41 paragraph 3, States Must, at the time of deposit of their instrument, notify the depositary of their 'consent to be bound by at least two of the three protocols annexed to the Convention. In the same manner, the Secretary- General kept instruments in abeyance until at least two of the protocols, by which the State concerned would be bound, had been duly identified. 130. Lastly, the instrument must contain an unambiguous expression of the will of the Government, acting on behalf of the State, to recognize itself as being bound by the agreement and to undertake faithfully to observe and implement its provisions. Thus, an expression, even under the signature of a competent authority, such as: "The Government has taken the necessary steps for the purpose of acceding to the agreement" or "the Government intends to accede,, is not deemed to be a sufficient manifestation of the will of the Government concerned to become a party to the agreement. 131. If one of these necessary elements is lacking, the Secretary-General does not accept the instrument in deposit. instead, the Secretary- General contacts the Government concerned in order to obtain an instrument in proper form or alternatively to receive a communication rectifying the error or the omission; the communication must be signed by the authority that issued the instrument or another qualified authority. It is only upon the receipt of such an instrument or communication that the deposit is then effected and that the Secretary-General will inform the other parties concerned accordingly. 132. A rather exceptional procedure was included in an unusual provision of the International Agreement on olive oil, 1956, as amended by the Protocol of 3 April 1958, 79/ which provided, in article 36, paragraph 5, that for the purposes of entry into force, a simple undertaking by a Government to endeavour to obtain as speedily as possible, in accordance with its constitutional procedure, either ratification or accession would be considered as equivalent to ratification or accession; 80/ such undertaking was to emanate from one of the government authorities competent to sign an instrument of ratification or accession. In accordance with that provision, the Secretary-General, as depositary, duly received such undertakings, when signed by a qualified authority, and then notified all States concerned accordingly and took such undertakings into account in determining the entry into force of the Agreement. 133. The exact nature of the instrument, notwithstanding its given title, must also be verified by the depositary. Normally, an instrument of accession cannot be substituted for the required instrument of ratification when the agreement has already been signed by the plenipotentiary of the Government concerned, any more than an instrument of ratification can be validly deposited if only an instrument of accession is acceptable. in this connection, the Secretary-General is guided by the relevant provisions of the agreement involved and by the intent of the Government in this regard. The Secretary-General, in his capacity as depositary, has evidently no authority to verify the correctness of the internal procedure followed by a State. But when he receives an instrument with a qualification that appears inaccurate - for example, if he receives an instrument of accession by a signatory - the practice of the Secretary-General is then to call the attention of the State concerned to the difficulty, and to request confirmation from the Government that the instrument is to be re-qualified as an instrument of ratification. Taking into account the unquestionable will of the State concerned to be bound, as expressed by the -39- relevant instrument, such confirmation,
considered as a mere question of form, may be given by the permanent
representative to the United Nations. Conversely, the deposit of an instrument
of ratification by a non-signatory would be re-qualified as
"accession", on the condition that the Secretary-General has satisfied
himself that the provisions of the treaty allow for instruments of accession and
that the deposit is made within the time-limits provided for by the treaty. C. Time-limits for deposit 134. In the case of an accession, but also for all deposits, the depositary must also make sure that any time-limits prescribed in the treaty are observed. otherwise, the instrument cannot validly be received in deposit. 135. The question of the date on which States may accede to a convention has sometimes raised questions of interpretation. Article 11 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, dated 7 September 1956, 81/ provides as follows:
The question arose whether the Secretary-General could accept in deposit an instrument of accession from a Member State before 1 July 1957. 136. A literal interpretation of article 11 would have led to a negative answer to this question. However, it appeared desirable and in conformity with the spirit of universality of the Convention to interpret the provision as meaning that the Convention was closed to signature on 1 July 1957 and open thereafter for accession only, rather than to conclude that an instrument of accession could not validly be received in deposit before that date, all the more since, in this exceptional case, the travaux preparatoires indicated that such a liberal interpretation was justified. The Secretary-General accordingly accepted in deposit on 12 June 1957 an instrument of accession to the Convention issued by the Government of Cambodia. 137. However, if the agreement provides that States in general, or certain categories of States, cannot accede until the agreement has come into force, and if instruments of accession are transmitted to the Secretary-General prior to entry into force, the Secretary-General draws the attention of the Government that transmitted the instrument to the relevant provisions of the agreement and informs it that the instrument is being held in the Secretariat but will not be accepted for deposit until the date on which the agreement enters into force. On that date, the other States concerned are formally notified of the deposit of the instrument, which is deemed to have been effected on the date of entry into -40- force. Until that date, the State in question is not included among the States ,parties to the agreement. 138. A similar practice is
applied in the case of accession to the constitutive acts of certain
organizations, when States may become members by accession only such terms as
the Governing Council or the Board of the organization shall have determined,
and upon the subsequent deposit of the corresponding instrument. If the
Secretary-General receives the instrument before the Council had determined the
conditions for accession, the Secretary- General will retain the instrument, and
so advise the State and the organization concerned. The Secretary- General will
formally receive the instrument in deposit only upon confirmation from the
organization that it has determined the required conditions and after he has
ascertained that the instrument duly reflects the acceptance of these
conditions. 82/ D. Place, method, effective date and acknowledgement of deposit 1. Place and method 139. Instruments become effective only when they have been deposited with the Secretary- General at United Nations Headquarters. The Secretary- General has never made an exception to this principle, because Headquarters is the place where the originals are kept and the necessary functions performed. Any other practice would only lead to confusion and create difficulties regarding the date on which the instruments take effect. (For the practice as concerns signature see paras. 116-119.) 140. The deposit of instruments at United Nations Headquarters is effected either by personal delivery by a representative of the Government concerned to the Secretary- General or to his representative (the Legal Counsel or the Chief of the Treaty Section of the of f ice of Legal Affairs) , or by mail. 141. Governments
sometimes will choose, for reasons of convenience, to hand the instrument to a
United Nations official at a unit outside New York (for example to the
Director-General of the United Nations office at Geneva), who then forwards the
instrument to New York. While the Secretary- General has not discouraged this
practice, it must be underlined that the remittance of the instrument to such
officials produces no legal effect. This rule is based on the fact that the
Secretary-General has assigned to the Office of Legal Affairs at Headquarters
the performance of depositary duties (see para. 27), including the verifications
which must be effected prior to the acceptance of the instrument for deposit. In
addition, it is clear that the depositary must, at all times, know the exact
status of the treaties deposited with him; such would not be the case if he were
to proceed to "retroactive" deposits of instruments handed to other
officials days and possibly weeks (owing to pouch delays) before their receipt
in New York. 2. Date of deposit 142. The date of deposit is normally that on which the instrument is received at Headquarters either by the Secretary-General personally, or by the Legal Counsel or the Treaty Section of the Office of Legal Affairs, or by the Mail Unit, unless the instrument is deemed not acceptable. If the instrument is acceptable, its deposit is deemed effected on the day of its receipt at -41- Headquarters even if, on a practical basis,
verifications, which may take a few days, have to be effected. However, the
deposit will of course produce its effect only in accordance with the provisions
of the treaty, for example that the party concerned will be bound three months
after the date of the deposit (see chap. VIII below). If so provided for in the
treaty, a party may also specify the date when its instrument is to produce its
effects. For example, if a treaty provides that notice of withdrawal must be
given a year in advance, a State may, when depositing its instrument, specify a
date later than 12 months forth for the withdrawal to become effective. 3. Acknowledgement of deposit 143. In all cases, the
Secretary-General acknowledges receipt of the instrument, indicating the date of
its deposit, or informs the State concerned of any difficulties. The practice of
issuing a formal procés-verbal of deposit has been discontinued, unless a
representative insists on such a form of acknowledgement. In addition to
acknowledging to the entity concerned the deposit of the instrument, after it
has been received, the Secretary-General also publishes immediately an
announcement in the Journal of the United Nations (see annex XVII). However,
this announcement is made for information purposes only, and is accompanied by a
footnote specifying that the date indicated in the announcement is "the
date of receipt of the relevant documents", i.e., that the documents still
have to be reviewed for determination as to the actual deposit. The
Secretary-General also informs all parties concerned of the deposit by means of
a depositary notification. If the deposit produces a legal effect, for example
if the treaty is in force and will become applicable by the State concerned, the
Secretary-General specifies the date of effect of the deposit (see annex XVIII). E. Instrument in respect of
only part of a treaty 144. A State may become a party to only part of an agreement, i.e., to only certain of its provisions, on the condition that such a possibility is provided for in the agreement. Thus, for example, the Revised General Act for the Pacific Settlement of International Disputes adopted on 28 April 1949 42/ provides, in its article 38, that accessions to the General Act may extend: (a) To all the provisions of the Act (chaps. I, II, III and IV); (b) To only those provisions only which relate to conciliation and any judicial settlement (chaps. I and II), together with the general provisions dealing with these procedures (chap. IV); or c) To only those provisions which relate to conciliation (chap. 1), together with the general provisions concerning that procedure (chap. IV). However, the contracting parties may benefit by the accessions of other parties only in so far as they have themselves assumed the same obligations. 145. The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (and protocols), concluded at Geneva on 10 October 1980, 78/ presents a somewhat similar situation. As indicated in paragraph 129 above, paragraph 3 of article 4 of the said Convention provides that expressions of consent to be bound by any of the three protocols annexed to -42- the Convention shall be optional for each State, provided that at the time of the deposit of its instrument of ratification, acceptance or approval of the Convention or of accession thereto, that State shall notify the depositary of its consent to be bound by at least two of the three protocols to the convention. A number of commodity agreements also provide for the possible partial application of the agreement, but then only for the parties that would so decide (see para. 240) . 146. In cases of partial application, the Secretary-General simply verifies that the instrument deposited complies with the provisions of the treaty in question. When such is not the case, the Secretary-General keeps the instrument in abeyance and brings the relevant provisions to the attention of the State concerned. Thus, when the Secretary-General received an instrument of accession to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively injurious or to Have Indiscriminate Effects (and protocols) without the indication of which protocols the State concerned was also accepting, the Secretary-General deferred the deposit of the instrument until he had received this indication (see para. 129). The indication as to which parts of the treaty are being accepted must be made under the signature of one of the three qualified authorities in the same manner as the instrument itself. F. Notifications 1. General principles 147. Notifications should
be distinguished from declarations. In the absolute, declarations would normally
appear to be statements which in principle purport to make more explicit the
meaning of a provision of a treaty. Notifications, on the other hand, are
normally statements that may be of two kinds: they may provide information as
required under a treaty, or they may be in the nature of a binding instrument.
However, the distinction between declarations and notifications is not always
made and the terms are very frequently used in an interchangeable fashion. 2. Notifications providing
information 148. Notifications may be
made simply to provide information as required under a treaty. Thus for example,
article 45 (4) of the Convention on Road Traffic of 8 November 1968 28/
provides that States parties must notify the Secretary-General of the
distinguishing sign they have selected for display in international traffic.
Similarly, article 2 of the Convention on the Recovery Abroad of Maintenance of
20 June 1956 83/ provides that each party shall communicate to the
Secretary-General which judicial or administrative authority is to receive
applications for the recovery of maintenance from a respondent, and that they
shall inform the Secretary-General of any charges in respect thereof. The
Secretary-General in turn duly communicates this information to the parties
concerned. 3. Notifications in the nature
of instruments 149. Notifications are most often in the nature of instruments, in that they will be binding on the State concerned and will create new obligations or -43- increase or limit existing ones. Such new or additional treaty obligations may be very diverse. The following are examples of such notifications: (a) Declarations made under Article 36, paragraph 2, of the Statute of the International Court of Justice recognizing as compulsory the jurisdiction of the Court. These declarations create a binding obligation on the State to submit its differences with another State to the compulsory jurisdiction of the Court, subject only to the text of the declaration; 14/ (b) Declarations recognizing the competence of treaty bodies, such as the Human Rights Committee, the Committee against Torture, etc. States having made such declarations accept that the relevant committee receives and considers claims from another State party that it is not fulfilling its treaty obligation 85/ or that the committee considers communications from individuals who claim to be victims of a violation by the State of the provisions of the Convention. Thus, for example, article 22 (1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 86/ reads as follows: "Article 22
4. Subsequent notifications by
States extending the scope of application 150. Certain agreements provide that their scope of application may be extended by means of notifications addressed to the Secretary-General. Thus, the Convention on the Privileges and Immunities of the Specialized Agencies, 8/ which provides, inter alia, in its section 43, that each State party shall indicate in its instrument of accession the specialized agency or agencies in respect of which it undertakes to apply the provisions of the Convention, further-provides that "each State party to this Convention may by a subsequent written notification to the Secretary-General of the United Nations undertake to apply the provisions of this Convention to one or more further specialized agencies." 151. Another similar situation is that provided for by the Convention relating to the Status of Refugees of 28 July 1951. 17/ The Convention provides that refugees are, inter alia, those persons who, for various reasons, cannot return to their country "as a result of events occurring before 1 January 1951". The Convention further provides, in paragraph B of its article 1, that:
-44-
152. Another situation of subsequent extension of application is that of treaties with federal clauses that allow for the subsequent application of a treaty to additional territorial units (see para. 272 below) . 153. In such cases of extension of the application of a treaty, the practice of the Secretary- General was not in the past wholly consistent, in that he did not at all times insist that the notifications should emanate from one of the three qualified authorities. However, taking into account that such notifications entail additional commitments by the States concerned, the Secretary-General has subsequently taken the position that these notifications should definitely emanate from one of the three qualified authorities, or if made by the permanent representative or another official, that they be accompanied by full powers. 154. 0n a substantive basis, a
notification of withdrawal of reservations (see chap. VIII) would also result in
the similar effect of possibly increasing the scope of the application of a
treaty by a State, as would also a notification of territorial application (see
chap. XI). 5. Subsequent notifications by
States limiting the scope of application 155. An important example of such a notification is that in article IV (3) of the International Covenant on Civil and Political Rights of 16 December 1966, 27/ which reads as follows:
Under paragraphs 1 and 2 of article IV, derogations to the full application of the Covenant are allowed in respect of certain articles, in case of public emergency. In accordance with that provision, the Secretary-General duly communicates to the other States the notifications he receives. However, a difficulty has sometimes arisen as concerns the information in respect of the provisions from which the State had derogated. When the notification merely describes, in general terms, the measures the State has taken to mitigate or to remedy the public emergency, without specifying which specific provisions of the Covenant it has derogated from, i.e., without listing the articles of the Covenant whose -45- application is suspended as a result of these
measures, the Secretary-General felt that he was not in a position to so inform
the other States parties, as prescribed by article IV (3). His practice was
therefore to insist that the State concerned indicate the articles from which it
had derogated; and only when this information was provided would the
Secretary-General consider the notification validly effected, and only then
would he communicate the notification to the other States. This practice, while
it had the advantage of informing the other States with due precision as to the
exact provisions from which the State concerned had derogated, presented the
defect of delaying the communication, sometimes for a considerable period of
time, pending the receipt of the requested clarification. The Secretary-General
has therefore modified his practice in this respect. If the specific articles
from which the State concerned has derogated are not indicated, the
Secretary-General will, as in the past, request that information from that
State, but he will now circulate immediately the notification as he receives it,
adding in the relevant depositary notification that he will provide information
identifying the specific articles concerned upon receipt of that information
from the State involved. G. Secondary effects of the
deposit of an instrument 156. The Secretary-General must sometimes also, in his capacity as depositary, determine the consequential effects of the deposit of an instrument with regard to certain other agreements. In some instances, for example, a protocol amending an earlier agreement may provide that, unless the State concerned notifies to the Secretary-General a contrary intent, the acceptance of the protocol entails also participation of the State in the agreement as amended or that, after the entry into force of the amending protocol, acceptance of the original agreement shall also entail, unless the State concerned notifies the Secretary-General to the contrary, the participation of that State in the amending protocol and therefore in the agreement as amended. Thus, for example, article 19 of the Protocol amending the Single Convention on Narcotic Drugs, 1961, concluded at Geneva on 25 March 1972, 36/ provides that any State which becomes a Party to the Single Convention after the entry into force of the Protocol shall, failing an expression of a different intention by that State, be considered a party to the Single Convention as amended, and be considered a party to the unamended Single Convention in relation to any party to that Convention not bound by the Protocol. Moreover, articles X and XI of the Protocol amending the Convention on the Limitation Period in the International Sale of Goods, concluded at Vienna on 11 April 1980, 37/ provide that if a State ratifies or accedes to the 1974 Limitation Convention after the entry into force of the Protocol, the ratification or accession shall also constitute an accession to the Protocol if the State notifies the depositary accordingly. Further, any State that becomes a contracting party to the 1974 Limitation Convention, as amended by the Protocol, shall, unless it notifies the depositary to the contrary, be considered to be also a contracting party to the Convention, unamended, in relation to any contracting party to the Convention not yet a contracting party to the Protocol. In all such cases, the Secretary-General notifies the parties concerned, not only of the deposit of the instrument itself, but also of the consequential participation in the protocol or in the amended or non-amended agreement, as the case may be (see annex XIX). -46- H. Withdrawal of an instrument 157. A State that had deposited an instrument of ratification or of a similar nature may subsequently decide to withdraw its instrument. The Vienna Conference on the Law of Treaties did not address this question. The practice of the Secretary-General has been to allow such a withdrawal until the entry into force of the treaty, on the understanding that, until that time, States are not definitely bound by the treaty. 158. In some cases, States that had thus withdrawn an instrument subsequently deposited a new instrument, but this time with reservations. In this manner, they were in compliance with the rule according to which reservations must be made at the time of deposit of the instrument (see para. 204). Thus, for example, the Government of Greece, which on 6 December 1950 had deposited an instrument of acceptance of the Convention on the Intergovernmental Maritime Organization of 6 March 1948, withdrew that instrument on 26 March 1952 (before the entry into force of the Convention, which took place on 17 March 1958), but reaccepted the Convention on 31 December 1958, with a reservation. And the Government of Spain, which on 29 July 1958 had deposited an instrument of accession to the Customs Convention on the Temporary Importation for Private Use of Aircraft and Pleasure Boats, and Protocol of Signature, signed at Geneva on 18 May 1956, 87/ withdrew the said instrument on 2 October 1958 (before the entry into force of the Convention, which took place on I January 1959) and then deposited a new instrument with a reservation. 159. While the withdrawal
of instruments is accepted until the entry into force of the corresponding
treaty, that withdrawal is without consequence as to the entry into force of the
treaty, if and once the conditions for entry into force have been met. Thus, if
a treaty provides that it will enter into force 90 days after the deposit of 20
instruments, once that number has been reached, the withdrawal, for example, of
one of these instruments which would lower the total number of 19 would not
result in the treaty not entering into force, as between the 19 remaining
parties, 90 days after the conditions were met. (For a case when a State ceases
to exist, see para. 235 below.) I. Denunciation of a treat 160. The Secretary-General also receives for deposit notifications of denunciation of treaties. The practice in respect of the deposit of binding instruments applies mutatis mutandis. The Secretary-General verifies that the denunciation of the treaty is allowed and that the conditions therefor have been met. He informs the other parties and specifies the date of effect of the withdrawal from the treaty. A difficulty may occur, however, when the treaty is silent as to withdrawal from the treaty. Thus when the Government of Senegal transmitted to the Secretary-General, as depositary, a notification by which Senegal denounced the Convention on the Territorial Sea and the Contiguous Zone 88/ and the Convention on Fishing and Conservation of the Living Resources of the High Seas of 29 April 1958, 89/ both of which did not provide for denunciation, the Secretary-General, in the absence of pertinent clauses in the Conventions concerned and of specific instructions from the parties, did not consider himself authorized to receive the notification of denunciation in deposit. The notification as well as a related exchange of correspondence between the Secretary-General and the Government of Senegal was circulated by the Secretary-General to all States concerned. In connection with the notification by Senegal, the Secretary-General received a communication by the Government of the United Kingdom to the effect that in the view of the United -47- Kingdom those Conventions were not susceptible to unilateral denunciation by a State that was a party to them and the United Kingdom therefore could not accept the validity or effectiveness of the purported denunciation by the Government of Senegal; and that accordingly, the Government of the United Kingdom regarded the Government of Senegal as still bound by the obligations which they assumed when they became a party to those Conventions and that the Government of the United Kingdom fully reserved all their rights under them as well as their rights and the rights of their nationals in respect of any action which the Government of Senegal had taken or might take as a consequence of the said purported denunciation. That communication was also circulated to all parties concerned. In view of the difficulty, the Secretary-General, not having accepted in deposit the notification of denunciation, simply inserted an explanatory footnote in the publication Multilateral Treaties Deposited with the Secretary-General. 90/ On the same basis, the said notification of denunciation could not be registered ex officio under the procedure set forth in article 4, paragraph 1 (c), of the General Assembly Regulations to give effect to Article 102 of the Charter of the United Nations. Instead, the registration of the certified statement was effected in the name of the Government of Senegal in accordance with article 2 (1) of the Regulations, as at the date of receipt of the notification of denunciation; as for the above-mentioned communication by the United Kingdom, it was similarly registered in the name of the United Kingdom. 91/ -48- Chapter VIII RESERVATIONS, OBJECTIONS, DECLARATIONS A. Definition of the term
"reservation" 161. Paragraph 1 (d) of article 2 of the Vienna Convention on the Law of Treaties, 3/ which restates established customary international treaty law on the matter, defines the term reservation as follows:
Paragraph 1 (d) of article 2 of the Vienna Convention on the Law of Treaties between States and International Organizations and between International organizations 4/ is, mutatis mutandis, similarly worded. The reservation must be included in the instrument or annexed to it and-must emanate from one of the three qualified authorities (see paras. 121 and 122 above). B. Main issues raised by reservations 162. The initial question which confronts the depositary when reservations are made is whether he should accept a signature or an instrument accompanied by a reservation. In that connection, two situations may occur: (a) the treaty is silent as to possible reservations; or (b) the treaty contains provisions as to reservations. It is to be noted that the General Assembly, in paragraph 1 of its resolution 598 (VI) of 12 January 1952 (see annex XX) on reservations to multilateral conventions:
However, a large number of treaties still do not include any such provisions. 163. If the treaty contains provisions as to reservations, the depositary, when deciding whether to accept a signature or an instrument accompanied by a reservation, will normally be guided by the provisions of the treaty concerned. 164. For example, the
treaty may expressly forbid any reservations. Such is the case for the
International Cocoa Agreement, 1980, 92/ article 67 of which reads as
follows: "Article 67. RESERVATIONS
In that case, the depositary will simply refuse to accept a signature or the deposit of an instrument accompanied with a reservation. If the treaty -49- expressly forbids reservations to specific articles, or conversely authorizes reservations to only specific articles, the depositary should simply abide by the relevant provisions. (For the practice of the Secretary-General in respect of treaties containing provisions as to reservations, see paras. 189-196 below.) 165. But two difficulties remain. If the treaty is silent as to the acceptability of reservations, what should the practice of the depositary be when a State makes reservations? Secondly, if the treaty contains provisions which exclude reservations, is it for the depositary to determine whether a "statement" accompanying the instrument is a reservation, i.e., whether the statement "purports to exclude or to modify the legal effects of certain provisions of the treaty in their application to the State concerned"; and if the depositary is to make that determination, on what basis should he do so (see paras. 194-196). 166. As to the first question, the fact that a multilateral treaty does not contain any provisions relating to reservations cannot, ipso facto, in the present state of international practice, justify the conclusion that States wishing to become parties to the treaty may not formulate reservations thereto. Nevertheless, the acceptance or rejection of the reservation is, so far as signatory and contracting States are concerned, a determining factor in the participation in the treaty of a State that would make its commitment conditional upon the application of the treaty in ways not provided for in the treaty itself. 167. The alternatives
appear to be either a rigid system (the written consent of all parties to the
treaty will be required before the deposit of an instrument accompanied by a
reservation is accepted) which would eliminate any possible ambiguity, or a
flexible system (the reservation will be presumed to have been accepted in the
absence of any objection, the parties remaining free to draw from the
reservation whatever legal consequences they deem right and proper in their
treaty relation with the reserving State). In the first case, participation in
the multilateral treaty will doubtlessly be more restricted, but this will be
offset by respect for the "integrity of the treaty"; in the second
case, wider participation in the treaty will be obtained, but will then entail
to some extent a "bilateralization" of international relations. C. Practice of the
Secretary-General as depositary prior to 1952, as concerns treaties silent as to
reservation 168. Originally, the Secretary-General applied a somewhat rigid system, which followed the practice of the Secretary-General of the League of Nations. When a particular treaty contained no provisions regarding the procedure to be followed as concerns the formulation and acceptance of reservations, the Secretary-General, in the exercise of his functions as depositary, adhered to the general principle that a reservation could not definitely be accepted until it had been established that none of the other States directly concerned had any objection thereto. An objection to a reservation may be defined as a unilateral statement, however phrased or named, made by a State which has consented to be bound by the treaty, whether or not the treaty is in force, to the effect that a reservation made by another State is contrary to the provisions of the treaty, inter alia, as being incompatible with the object and purpose of the treaty, and that the said reservation is therefore invalid and inadmissible. Thus, when a treaty was already in force, the Secretary-General did not accept for definitive deposit an instrument of ratification or accession until the consent, express or implied, of the States that had become parties to that treaty up to the date on -50- which the instrument containing the reservation was submitted. If the treaty had not yet entered into force, the instrument was not accepted for definitive deposit except with the consent of the States that had ratified the treaty or had acceded to it by the date of entry into force or by the date on which the time-limit for entry into force had begun. Consequently, in the case of an agreement not yet in force, when the Secretary-General received a signature or an instrument of ratification or accession accompanied by a reservation, he formally communicated the reservation to all States that might become parties to the Convention. At that time, he asked the States that had already ratified or acceded to the agreement to inform him of their attitude regarding the reservation and stated that unless they notified him of their objections to that reservation before a certain date - generally the date of entry into force of the agreement - they would be presumed to have accepted it. States which ratified or adhered to the agreement after having been informed of a reservation were deemed to have accepted that reservation. 169. If the convention had already entered into force on the date on which the instrument containing the reservation was received, the procedure was similar, except that the Secretary-General would set a reasonable time-limit for transmitting objections: he would either adopt the date on which the instrument of ratification or accession was to take effect, if the agreement in question made provision for such an interval, or fix a special time-limit. 170. Where there existed an organ capable of determining the effects of a reservation, the Secretary-General referred the text to it for interpretation. Thus, on 30 June 1948, the Secretary-General informed the States parties to the Constitution of the World Health Organization 93/ that he was unable to decide whether the United States of America had become a party to that Convention by depositing an instrument containing a reservation, but he also pointed out that the World Health Assembly was competent to interpret the Constitution, under article 75 of that text. The Assembly later recognized unanimously that the reservation was not incompatible with the Constitution, and it was only then that the Secretary-General announced that the United States had become a party to the Convention. 171. A similar procedure was followed when, on 16 February 1949, the Union of South Africa expressed the desire to sign the Protocol Modifying Certain Provisions of the General Agreement on Tariffs and Trade, 94/ with a reservation excluding the application of one of its articles. In that case, the signature was definitely binding on the signatory States. A proc&s-verbal of signature was therefore drawn up in order to enable the representative of the Union of South Africa to sign the Protocol, "it being understood that such signature would not have any legal effect until the Secretary-General of the United Nations had informed each of the Contracting Parties of it and of the reservation made thereto and until each Contracting Party had notified the Secretary-General of its acceptance". 172. A declaration accepting the reservation was subsequently transmitted to the Secretary-General, informing him that the reservation formulated by the Union of South Africa had been examined at a meeting held on 9 May 1949, at which all the contracting parties to the General Agreement on Tariffs and Trade had been represented, and that no contracting party had raised any objection to the reservation. A more flexible system was subsequently instituted when the General Assembly adopted resolution 598 (VI) of 12 January 1952, and later resolution 1452 B (XIV) of 7 December 1959. -51- D. Depositary practice recommended by the General Assembly in resolutions 598 (VI) and 1452 B (XIV) in respect of treaties silent as to reservations 1. Background 173. Under the practice described in section C above, a difficulty occurred in 1950, in that it was not possible for the Secretary-General to determine whether the Convention on the Prevention and Punishment of the Crime of Genocide, which contained no provisions as to reservations, would enter into force in accordance with its article XIII, i.e. the nineteenth day after the date of deposit of the twentieth instrument of ratification or accession, since a number of those 20 instruments contained reservations as to various articles of the Convention, to the substance of which reservations a number of other States had objected. It had consequently appeared to the Secretary-General that the legal effect of objections to reservations would require a determination in order to establish whether States making reservations to which objection had been raised were to be counted among those necessary to permit the entry into force of the Convention. The Secretary-General therefore reported the difficulty to the General Assembly at its fifth regular session. 95/ 174. In turn, and on the basis of a report of its Sixth Committee, the General Assembly, on 16 November 1950, adopted resolution 478 (V) (see annex XXI), in which it requested the International Court Of Justice to give an advisory opinion on the various questions raised by the situation. The Assembly also invited the International Law Commission to prepare a report on the matter. 96/ 175. On 28 May 1951, the International Court of Justice gave its advisory opinion on the questions (see annex XXII) within the context of the Convention on the Prevention and Punishment of the Crime of Genocide, 44/ and the International Law Commission, in its report covering the work of its third session (16 May-27 July 1951), submitted to the General Assembly its observations on the general problem of reservations. 97/ 176. Having noted the
advisory opinion of the International Court of Justice of 28 May 1951 regarding
reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide and the report of the International Law Commission on the question of
reservations to multilateral conventions, the General Assembly, in its
resolution 598 (VI), advised the Secretary-General, as depositary of
multilateral treaties, to follow this practice: (a) to accept the deposit of
documents containing reservations or objections; (b) to refrain from passing
upon the legal effect of such documents; and (c) to communicate the text of such
reservations or objections to all States concerned, leaving it to each State to
draw legal consequences from such communications. This practice was to be
followed in respect of reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide and to conventions concluded after the date
(12 January 1952) of adoption of resolution 598 (VI). 2. Practice of the Secretary-General after the adoption of resolution 598 (VI) (a) In general 177. So far as conventions concluded before 12 January 1952 were concerned, the Secretary-General, as depositary, continued to follow his previous practice as described above; but only until 7 December 1959, however, since on that date the -52- General Assembly by its resolution 1452 B (XIV) requested the Secretary-General to apply the practice described in section C above to all conventions concluded under the auspices of the United Nations (i.e., even to those concluded before 12 January 1952) which did not contain provisions to the contrary. 178. As concerns the treaties concluded after General Assembly resolution 598 (VI) of 12 January 1952, and in the absence of any clause on reservations in such treaties, the Secretary-General adheres to the provisions of that resolution and restricts himself to communicating to the States concerned the text of the reservations accompanying instruments of ratification or accession and eventually the texts of objections to the reservations, without passing upon the legal effect of such acts. It is then for the States concerned to make known their position as to reservations. Thus, for example, a number of objections were made by States in respect of a reservation made by Chile in connection with the Convention against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment. 86/ The reservation (to art. 2, para. 3, of the Convention) provided in substance that the Government of Chile reserved the right not to apply the provisions of the Convention to subordinate personnel governed by the Code of Military Justice if the order patently intended to lead to perpetration of the acts referred to in article 1 (as constituting "torture") was reiterated by the superior officer after being challenged by his subordinate. Various States subsequently formulated objections to that reservation and the Government of Chile subsequently withdrew it. 98/ 179. A similar situation occurred in respect of a reservation to the same Convention made by the German Democratic Republic, which declared, in substance, that it would not contribute to those expenses of the Committee against Torture which arose from activities of the Committee which it had not accepted. A number of objections were deposited and the German Democratic Republic subsequently withdrew its reservation. 98/ 180. Another case of reservations followed by a number of objections may be found in respect of the Convention on the Elimination of All Forms of Discrimination against Women. 25/ Various States deposited instruments accompanied by statements to the effect that their participation would be without prejudice to, or could not conflict with the provisions of the Islamic Shariah. A number of States objected to the reservations. 99/ 181. In all of the above cases, the Secretary-General duly circulated the reservations and the objections thereto, and in the relevant instances the withdrawal of the reservations, without passing judgement on them since as far as he is concerned, the Secretary-General, when receiving instruments of ratification or acceptance with appended reservations, considers that his main function is to inform the States concerned of the deposit, quoting the reservation but without seeking to clarify the scope or effects of the reservation. This practice of course applies only when the treaty is silent as to reservations. Similarly, as indicated above, the Secretary-General circulates without comment any objections to those reservations that might subsequently be received. Once the Secretary-General has accepted an instrument of ratification or accession, he includes the State concerned in all the processes of operation of the convention, so far as they concern the Secretary-General's functions in respect of that convention. That would involve, for instance, the circulation to that country of all documents appertaining to the status of the convention. if in carrying out those functions the Secretary-General should be confronted with some unexpected legal problem which could not be solved by agreement between the parties, the only possibility open to him -53- would be to seek the guidance of the General
Assembly, which could then possibly request an advisory opinion from the
International Court of Justice. (b) In case of
objection to participation by another State and of objection to territorial
applications 182. A number of States have made declarations to the effect that their ratification of various treaties would in no way constitute recognition of another State or be a cause for the establishment of any relations under the treaty. In turn, such State has made declarations such as:
183. Various States have deposited declarations objecting to the extension of the application of a treaty to Non-Self-Governing Territories by another State. Thus, for example, the Government of Argentina has objected to the territorial application of treaties by the United Kingdom to the Falkland Islands (Malvinas) in the following terms:
In turn, the Secretary-General received from the Government of the United Kingdom of Great Britain and Northern Ireland the following declaration:
In all such cases, the Secretary-General has
limited himself to the circulation and publication of the communications in
question. (c) Practice as
concerns the determination of the entry into force of a treaty 184. Since he is not to pass judgement, the Secretary-General is not therefore in a position to ascertain the effects, if any, of the instrument containing reservations thereto, inter alia, whether the treaty enters into force as between the reserving State and any other State, a fortiori between a reserving State and an objecting State if there have been objections. As a consequence, if the final clauses of the treaty in question stipulate that the treaty shall enter into force after the deposit of a certain number of instruments of -54- ratification, approval, acceptance or accession, the Secretary-General as depositary will, subject to the considerations in the following paragraph, include in the number of instruments required for entry into force all those that have been accepted for deposit, whether or not they are accompanied by reservations and whether or not those reservations have met with objections. 185. Nevertheless, an objection possibly could in principle have the legal effect of precluding the deposit of an instrument containing a reservation which would conceivably be totally invalid - for example, where one or more contracting parties object to the instrument on the ground that the reservation is absolutely incompatible with the object or purpose of the treaty and hence would result in precluding the entry into force; but it would not be for the Secretary-General to pass upon the matter. Initially, on the basis of the above, his practice was as follows: 100/ once the number of instruments required for the initial entry into force of the treaty had been received, if some of those instruments were accompanied by reservations which had met with objections or if it was the deposit of an instrument accompanied by a reservation that brought the number received up to the number required for initial entry into force, he announced the entry into force of the treaty unless one or more of the contracting parties should "object", within 90 days, to the inclusion of the instruments in question in the number required for initial entry into force of the treaty, the contracting parties remaining of course free at any time to raise objections as regards their reciprocal treaty relations. 186. However, the effect of this practice was to delay the announcement of the entry into force of the treaty as well as its registration under Article 102 of the Charter of the United Nations. For example, the Convention on the High Seas, 101/ which entered into force on 30 September 1962, was only registered on 1 January 1963. Furthermore, it was felt that delaying the announcement implied as much of a judgement by the Secretary-General as not doing so did. Also, no objection had ever in fact been received from any State concerning an entry into force that included States making reservations. Finally, for a State's instrument not to be counted, it might conceivably be required that all other contracting States, without exception, would have not only objected to the participation of the reserving State, but that those objecting States would all have definitely expressed their intention that their objection would preclude the entry into force of the treaty as between them and the objecting State. 102/ Accordingly this practice has been discontinued in all cases, and the Secretary-General applies the practice described in paragraph 184 above. 187. As concerns the deposit of instruments after entry into force, the practice of the Secretary-General was initially not to indicate any date of entry into force in the circular letter announcing the deposit of an instrument accompanied by a reservation, as indicating such a date would amount to passing on the legal effect of the instrument concerned. Upon a subsequent review of this practice, however, it was felt that not indicating the date of effect might also be considered as amounting to passing judgement. Accordingly, the practice was changed so that now where ratifications, accessions and the like are accompanied by reservations not provided for in the treaty in question, the Secretary-General indicates the date on which, in accordance with the treaty provisions, the instrument would normally produce its effect, leaving it to each party to draw the legal consequences of the reservations that it deems fit. -55- 3. Practice after the adoption
of resolution 1452 B (XIV) 188. By resolution 1452 B (XIV) the General Assembly, recalling its resolution 598 (VI) of 12 January 1952, decided to Amend paragraph 3 (b) of that resolution by requesting the Secretary-General to apply the paragraph to his depositary practice until such time as the General Assembly might give further instructions, in respect of all conventions concluded under the auspices of the United Nations which did not contain provisions to the contrary. It decided that the practice described in paragraphs 173 to 187 above would henceforth apply, not only to treaties concluded after 12 January 1952, but to all conventions, i.e., even to those concluded before 12 January 1952. The Assembly also confirmed the understanding of the Secretary-General on the matter, that is, that the practice would only apply to treaties which did not contain provisions to the contrary. E. Practice of the Secretary-General. as depositary, in respect of treaties that contain provisions as to reservations 1. General Principles 189. In respect of statements which are clearly reservations, the depositary of a treaty must observe such provisions relating to reservations as are contained in the agreement concerned. For example, article 21 (2) of the European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR) of 1 July 1970 103/ provides as follows:
Upon the deposit by various States of a non-authorized reservation concerning transport operations between States members of the European Economic Community, the Secretary-General duly circulated the reservation. In the absence of any objection thereto within six months, the Secretary-General accepted the deposit of the relevant instruments, with effect from the date of the expiry of the six month period. 104/ 190. Another example is that of the Convention on Psychotropic Substances of 21 February 1971, 105/ which provides as follows in its article 32 (3):
-56- objected to by one third of the States that have signed without reservation of ratification, ratified or acceded to this Convention before the end of that period, it shall be deemed to be permitted, it being understood, however, that States which have objected to the reservation need not assume towards the reserving State any legal obligation under this Convention which is affected by the reservation". When the Secretary-General received instruments of ratification containing reservations other than those expressly authorized, he therefore circulated the text of the said reservations, and he only accepted the instrument for deposit after one year had elapsed without having received qualifying objections as defined above. 106/ 191. If the treaty forbids any reservation, the Secretary-General will refuse to accept the deposit of the instrument. The Secretary-General will call the attention of the State concerned to the difficulty and shall not issue any notification concerning the instrument to any other State concerned (see paras. 194-196 below). 192. If the prohibition is to only specific articles, or conversely reservations are authorized only in respect of specific provisions, the Secretary-General shall act, mutatis mutandis, in a similar fashion if the reservations are not in keeping with the relevant provisions of the treaty. Such a situation occurred when a State deposited instruments of accession to both the Convention relating to the Status of Refugees of 28 July 1951 17/ and to the Protocol relating to the Status of Refugees of 31 January 1971 107/ with reservations to the effect that it did not accept the provisions contained in both treaties in respect of the settlement of disputes by the International Court of Justice. Such a reservation was authorized under article IV of the Protocol but was barred under article 42 (1) of the Convention, which reads as follows: "Reservations
The Secretary-General accordingly accepted the instrument in respect of the Protocol and recalled to the State concerned the prohibition in the Convention. 193. However, only if there is prima facie no doubt that the statement accompanying the instrument is an unauthorized reservation does the Secretary-General refuse the deposit. Such would evidently be the case if the statement, for example, read "State XXX shall not apply article YYY", when the treaty prohibited all reservations or reservations to article YYY. 2. Determination of whether the statement accompanying the instrument is a reservation 194. However, such a prima facie determination is not always possible and in the above case the Secretary-General might have to endeavour to determine, at least tentatively, the character of the statement and whether or not the statement was in the nature of an unauthorized reservation, whatever its description or title :(Declaration, understanding, etc.). If in the opinion of the Secretary-General -57- the statement unambiguously purports to exclude or modify the legal effects of certain provisions of the treaty in their application to the State concerned, contrary to prohibitions in the treaty, the Secretary-General shall apply the practice described in section E.1 above. 195. In case of doubt, the Secretary-General shall request clarification from the State concerned. Thus in one instance the Secretary-General questioned the character of the statement accompanying the instrument of ratification and stated, inter alia, in a letter to the Government concerned that it would be his understanding that the statement, which had been termed an "observation", was merely intended to note the fact of the relation between articles of the convention and that it should therefore in no way be construed as a reservation. He added:
The ratification was formally received in deposit on the date of receipt of the reply confirming the understanding of the Secretary-General, and all interested Governments were notified accordingly. 196. However, the Secretary-General feels that it is not incumbent upon him to request systematically such clarifications;, rather, it is for the States concerned to raise, if they so wish, objections to statements which they would consider to constitute unauthorized reservations. Thus, for example, when it ratified the United Nations Convention on the Law of the Sea 19/ - articles 309 and 310 of which provide that no reservations may be made to the Convention, and that declarations or statements, however phrased or named, may only be made if such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of the Convention in their application to the State concerned - the Government of the Philippines made the following "statement":
The Secretary-General circulated that statement, in respect of which a number of States deposited objections to the effect that the declarations contained therein constituted, in essence, reservations which were contrary to the prohibition in article 309. 109/ In response to those objections, the text of -58- which he had duly circulated, the Secretary-General received from the Government of the Philippines the following declaration which he also circulated without comment:
F. Special practice in respect of reservations to constitutive acts of international organizations 1. International organizations
in general 197. When a convention embodies a constitution establishing an international organization, the Secretary-General's practice is similar to his practice prior to resolution 598 (VI) (see sect. C above) and he transmits any reservations accompanying an instrument of ratification or accession to that organization for its consideration and informs the State concerned accordingly. He then makes certain that his actions conform, in respect of such instrument, with the decision of the competent organ of the organization concerned. In this connection it will be noted that the International Law Commission, in its commentary on the provisional draft articles covering the topic of the conclusion of treaties as adopted at its fourteenth session, considered that:
198. The Vienna Convention on the Law of Treaties 2/ has codified that practice in its article 20, paragraph 3, which reads:
Thus, when Germany and the United Kingdom accepted the Agreement establishing the African Development Bank of 17 May 1979, as amended, 112/ they made reservations which had not been contemplated in the Agreement. The Secretary-General, as depositary, duly communicated the reservations to the Bank and accepted the deposit of the instruments only after the Bank had informed him that it had accepted the reservations. 113/ -59- 2. The specialized agencies of
the United Nations 199. The Convention on the Privileges and Immunities of the Specialized Agencies 8/ also requires additional procedural steps on the part of the depositary since, although only States are stricto sensu parties to the Convention, under its terms the specialized agencies themselves must participate in the operation of the Convention and take various actions under its final articles. In fact, an examination of the form and structure of the Convention on the Privileges and Immunities of the Specialized Agencies leaves little doubt that the specialized agencies themselves have the necessary juridical standing to object to reservations and that their consent is accordingly necessary before a reservation altering their own privileges and immunities under the Convention could become effective. 200. Indeed, the Convention on the Privileges and Immunities of the Specialized Agencies combines the characteristics of both a multilateral and a bilateral convention. It is multilateral in so far as the States in acceding to the Convention exchange with each other their undertakings to accord specific privileges and immunities to the specialized agencies in return for each other party's having accepted a similar obligation. At the same time, the legal relationships set up by the Convention also comprise sets of bilateral undertakings exchanged between States and specialized agencies. 201. In that connection, it is worth noting that specialized agencies are by no means the mere passive beneficiaries of the Convention. It was precisely to further their functions that the Convention was adopted. First, by its resolution 179 (II) of 21 November 1947 the General Assembly of the United Nations submitted the text of the Convention "to the specialized agencies for acceptance and to every Member of the United Nations and to every other State member of one or more of the specialized agencies for accession". Secondly, to accomplish this acceptance by the agencies, the Convention provided that its terms could be adapted to the requirements of each individual agency by means of an annex, the final text of which was left to each agency to approve, in -accordance with its constitutional procedure (see sects. 1 (iii) and 36 of the Convention). Thirdly, each specialized agency was also required to transmit to the Secretary-General of the United Nations a notification accepting the standard clauses as modified by its annex and expressly undertaking to give effect to all those sections placing obligations on the agencies (sect. 37). Irrespective of the question whether or not each agency may be described as a "party" to the Convention in the strict legal sense, each specialized agency has a direct interest in any proposal by an acceding State to alter in any way the terms of the Convention. It has therefore been the policy of the agencies not to accept reservations which would have the effect of introducing elements of difference in the treatment accorded by States to the specialized agencies under the Convention in matters of general concern; and the history of the Convention has consistently demonstrated a strong opposition by the specialized agencies to reservations in general. 114/ Thus, in accordance with established practice as concerns the Convention, the Secretary-General, when he receives an instrument of accession accompanied by a reservation, communicates its text to all States parties and to all other States Members either of the United Nations or of any specialized agency, as well as to the executive heads of the specialized agencies, and he so informs the State acceding subject to the reservation. He also refrains from stating in his circular note any date of entry into force as between the acceding State and the specialized agencies to which it undertakes to apply the Convention. -60- 202. These reservations are customarily examined by the Heads of the specialized agencies, within the framework of the Administrative Committee on Coordination, to determine whether the reservations are to be considered incompatible with the provisions of the Convention on the Privileges and Immunities of the Specialized Agencies. The Committee, which is composed of the executive heads of the specialized agencies and presided over by the Secretary-General of the United Nations, adopted, at its sixteenth session, in May 1953, a policy statement requesting the Secretary-General, as depositary, to continue to notify all executive heads of the specialized agencies of the terms of any reservations to the Convention on the Privileges and Immunities of the Specialized Agencies, and simultaneously to place the question of any such reservation on the agenda of the Administrative Committee on Coordination. 203. In every instance of
a reservation to the above Convention, the Administrative Committee on
Coordination has requested the Secretary-General of the United Nations, on
behalf of the specialized agencies, to communicate with the Governments which
had included reservations in their instruments and to indicate to them in which
respect the agencies considered the reservations incompatible with the objects
and purposes of the Convention and to seek to reach an understanding acceptable
both to the Governments presenting the reservations and to the specialized
agencies. Such consultations have usually resulted in the withdrawal of the
reservations. Upon the withdrawal of the reservations (or possibly upon an
acceptable redrafting), the Secretary-General immediately proceeds to the
deposit of the instrument and informs accordingly all states concerned,
specifying the date of the entry into force of the convention for the State
concerned. G. Reservations made after the deposit of the related instrument 1. General principles 204. Under established
customary international treaty law, as codified by the Vienna Convention on the
Law of Treaties, 3/ reservations may only be made (when allowed) at the time of
signing or of depositing an instrument of ratification or the like, or
alternatively, with the unanimous consent of all parties concerned (see article
19 of the Vienna Convention). 2. Practice of the
Secretary-General as depositary 205. The Secretary-General normally follows the above-mentioned principles. However, in a few cases, when he has received reservations after the deposit of the corresponding instrument, he has circulated the text of the reservation to all parties concerned and has proposed that in the absence of objections by any of those States within 90 days from the date of circulation, the reservations be deemed accepted as part of the State's notification, the absence of objections being then considered by the Secretary-General as amounting to a tacit acceptance by all parties concerned of the reservation in question. 206. This practice appeared all the more desirable in the many cases where the reservation was specifically authorized or where other States had made a reservation identical to that which the State concerned wished to make after the prescribed time. Examples of such reservations are those made by Greece and by the United Kingdom subsequent to the deposit of their instrument of ratification of the Convention on the Recognition and Enforcement of Foreign Arbitral -61- Awards. 115/ In all cases, relevant
notifications are addressed to all States concerned (see annex XXIII). The same
practice has also been applied when States have wished to substitute new
reservations for initial reservations made at the time of deposit, since this
has amounted to a withdrawal of the initial reservations - which raised no
difficulty - and the making of (new) reservations. 3. Notifications constituting
authorized subsequent reservations 207. Article IV of the
International Covenant on Civil and Political Rights 27/ provides in
substance that States may, in case of public emergency, suspend the application
of certain provisions of the Covenant (see para. 150 above). These derogations
are thus allowed only in case of, and only as long as there exists a public
emergency. However, such notifications made under article IV may be considered
as being in the nature of authorized reservations, during a period of emergency. H. Reservations made upon signature 1. General principles 208. The practice
described above in respect of reservations accompanying instruments applies,
mutatis mutandis, to the signature of treaties (the Secretary-General would not
accept to receive a signature when he would not accept an instrument in
deposit). Reservations made at the time of signature must be authorized by the
full powers granted to the signatory by one of the three qualified authorities
or the signatory must be one of these authorities (see chap. VI). 2. Effect of reservations made
upon signature 209. The reservation has
only a declaratory effect, having the same legal value as the signature itself.
Reservations formulated when signing the treaty subject to ratification,
acceptance or approval must be formally confirmed by the reserving State when
expressing its consent to be bound by the treaty. In such a case, the
reservation shall be considered as having been made on the date of its
confirmation (see article 23, para. 2, of the Vienna Convention on the Law of
Treaties 3/). I. Objection to reservations 1. General principles 210. Normally, a signatory or contracting state, when informed by the Secretary-General of the deposit of an instrument containing a reservation, has the option of objecting to the reservation, inter alia, if in its opinion the reservation is incompatible with the purpose and object of the treaty. The objecting State may further declare that its objection has the effect of precluding the entry into force of the treaty as between objecting and reserving State. -62- 2. The Vienna Convention system 211. The Vienna
Convention on the Law of Treaties adopts the same principle as General Assembly
resolution 598 (VI), viz., the States parties - and only the States parties -
are competent to pass upon the legal effect of reservations and objections.
However, the Convention specifies, or rather limits, that competence by virtue
of the following two presumptions: (a) an objection does not preclude the entry
into force of the treaty as between the objecting and reserving State unless a
contrary intention is definitely expressed (article 20, para. 4 (b), of the
Convention); and (b) a reservation is considered accepted if no objection is
raised within a period of 12 months (article 20, para. 5, of the Convention),
the time-limit for objections by States therefore being one year after receipt
of notification of a reservation. 3. Practice of the
Secretary-General 212. The Secretary-General has not felt that the principle in resolution 598 (VI) is to be considered altered by the two above-mentioned presumptions. Thus, when a State objects to a reservation without specifying whether the objection is to preclude the entry into force of the treaty as between the objecting and reserving States, the Secretary-General does not act upon the presumption of article 20, paragraph 4 (b), of the Convention, does not include any indication on this question in his depositary notification and restricts himself to communicating the objection (see paras. 184 -187 above). States, in order to make known their position without delay (or without uncertainty, where non-parties to the Vienna Convention are involved), will often specify in the objection whether it precludes entry into force as between themselves and the reserving State. 213. As concerns the second presumption in the Vienna Convention, i.e., the presumed acceptance of the reservation in the absence of objections within a year, the Secretary-General also does not feel that this presumption is binding on him. He therefore accepts for deposit objections made even after the time lapse provided for in the Convention. However, taking into account the indicative value of this provision in the Vienna Convention, the Secretary-General, when thus receiving an objection after the expiry of this time lapse, calls it a "communication" when informing the parties concerned of the deposit of the objection. 214. As with objections to corrections (see para. 51), the Secretary-General communicates all objections to reservations emanating from another contracting or signatory party. He also communicates "objections" from non-contracting or signatory States, but terms them communications; since they are of no legal effect these communications are not registered under Article 102 of the Charter, nor are they published in the United Nations Treaty Series. An exception was made in the case of objections made by the Union of Soviet Socialist Republics to the extension by the Federal Republic of Germany of the application of certain treaties to Berlin (West), even when the Soviet Union was not a party to the treaty concerned. The basis for the decision to accept such objections as such was that the extension of the application of the treaty to Berlin (West) could result in a modification of the scope of the Quadripartite Agreement and Final Protocol on Berlin. 116/ In a similar fashion, "counter-objections" by the other three parties to the Quadripartite Agreement or Protocol to the objections by the Soviet Union were also accepted for deposit. 117/ -63- 215. At one time, the Union of Soviet Socialist Republics, in a note addressed to the Secretary-General, had objected to the circulation by the Secretary-General of communications by the Federal Republic of Germany concerning the application of treaties to Berlin (West) on the ground that the Federal Republic of Germany was not then a member of the United Nations. The Secretary-General duly circulated the Soviet Union's communication to all interested States, together with the relevant portion of his reply, which reads as follows:
For the above-mentioned reasons, the
Secretary-General, in the exercise of his depositary functions, deemed it
necessary to bring the communications received from the Federal Republic of
Germany, which was a party to the treaties concerned, to the attention of all
Member States, as well as those non-member States, which were or might become
parties to the treaties concerned. J. Withdrawal of reservations
and objection 216. Unless the treaty itself provides otherwise, reservations and objections may be withdrawn at any time (see article 22 of the Vienna Convention on the Law of Treaties 3/). Withdrawal must be made in writing and under the signature of one of the three recognized authorities, since such withdrawal shall normally result, in substance, in a modification of the scope of the application of the treaty. K. Declarations 1. General Principles 217. Declarations, however they may be known (communications, interpretative declarations, understandings, etc.), either made at the time of signature or at the time of deposit of a binding instrument, are to be distinguished from reservations in that they do not purport to exclude or modify the legal effects of the treaty. -The purpose of declarations is rather, in principle, to make more explicit the meaning of a particular provision. However, declarations are made in a political context - for example, to express satisfaction at the adoption of the treaty, or to express regret that a provision has not been included in the treaty and the hope that through an amendment it will be in the future, or to express dismay that a provision has been included which the State concerned finds offensive. while declarations are usually made at the time of the deposit of the corresponding instrument or at the time of signature, they are sometimes made in contemplation of the impending signature of the treaty, after its adoption, and the text of such declarations is then frequently reproduced in the Final Act of the Conference that adopted the treaty. -64- 2. Practice of the
Secretary-General 218. Even if it is called a declaration, if the statement is in fact a reservation or an instrument, it is treated as such; otherwise, the Secretary-General simply circulates the declaration. Declarations - especially interpretative declarations - are not totally without effect since, as indicated above, while they normally purport not to modify the treaty, their aim is to make more explicit the meaning of a particular provision as the declaring State understands it, and it is on that basis that the Secretary-General communicates them to the States concerned. It is then of course for the parties or, possibly, to the organization concerned to determine to what extent the interpretation given by that State should be taken into consideration in case of a dispute. 219. As concerns declarations made in final acts in contemplation of the immediate signature of the treaty, the Secretary-General has considered them to have been made at the time of signature and has circulated their text accordingly. Thus those declarations which related directly to the implementation of the Convention and which were included in the Final Act of the Conference that adopted the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal of 22 March 1989 118/ were considered as made upon signature by those States that signed the Convention on the date of its adoption and were circulated accordingly. 220. In a similar fashion, the Secretary-General has accepted declarations which referred to related documents. Thus, when Argentina deposited an instrument of accession to the Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques of 10 December 1976 (the ENMOD Convention) 119/ which included a declaration to the effect that Argentina interpreted certain provisions of the Convention in accordance with understandings adopted as part of the report of the Conference of the Committee on Disarmament to the General Assembly at its thirty-first session, 120/ the text of those understandings was considered part of Argentina's declaration, and included as such in the corresponding depositary notification. -65- Chapter IX ENTRY INTO FORCE 221. Treaties enter into
force, viz., they start producing their effects and become binding on the
parties thereto, in accordance with the provisions of the treaty. The treaty may
provide that it shall enter into force on a specified date, or that it shall
enter into force on the date when certain conditions are met. whatever the
circumstances, the date of entry into force is normally determined by the
depositary, who to that end must verify that the conditions set forth by the
treaty have been met (see paras. 184 -187 above). A. Initial entry into force 222. The conditions
contained in those clauses which govern such entry into force may vary. 1. Entry into force on a set
date 223. Sometimes the date
is fixed by the agreement itself. Such was the case for the Agreement providing
for the Provisional Application of the Draft International Customs Conventions
on Touring, on Commercial Road Vehicles and on the International Transport of
Goods by Road, done at Geneva on 16 June 1949, 121/ which stipulated
in its article III that it was to enter into force on I January 1950. In the
absence of other provisions, the Agreement entered into force on that date for
those States that, at that date, had accepted to be bound by the Agreement.
However, such a clause is unusual in multilateral treaties.
224. Many treaties provide that entry into force shall take place on the date on which a specified number of States have accepted to be bound. Thus article 12 of the Agreement establishing the Pepper Community of 16 April 1971 122/ provides that the Agreement shall enter into force between the contracting parties that have deposited instruments of ratification or acceptance when not less than three of them have deposited such instruments. 225. Other treaties stipulate that a certain period must elapse between the date on which the required number of instruments is deposited and the entry into force. Thus the Convention on the Political Rights of women, 123/ concluded at New York on 31 March 1953, provides, for example, in its article VI that it "shall come into force on the nineteenth day following the date of deposit of the sixth instrument of ratification or accession". And article 49 of the International Covenant on Civil and Political Rights 26/ provides that "the present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession." 226. Some treaties provide for additional conditions to that of the deposit of a number of instruments. For example, article 10 (1) of the Protocol of 28 September 1984 to the 1979 Convention on Long-range Transboundary Air -66- Pollution on Long-term Financing of the Cooperative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants in Europe (EMEP) 124/ provides as follows: "Article 10 "Entry into force
This means that the instruments deposited by Canada and the United States, which are not within the geographical scope of EMEP, were not to be counted, i.e., that, the deposit of 19 other instruments was required as one of the conditions for the Protocol to enter into force. 227. A second condition was provided for by subparagraph (b) of article 10 (1), which reads as follows:
The Secretary-General, before announcing the entry into force of the Protocol, therefore also had to ascertain that the above percentage had been met. It is to be noted that States not Members of the United Nations, such as Switzerland, were included in the calculation since as observers they are assessed on the same basis as Members. Another example of a treaty with additional conditions for its entry into force is that of the Convention on the Intergovernmental Maritime Consultative organization, 125/ which provided in its article 60 that it would enter into force "on the date when 21 States, of which seven shall each have a total tonnage of not less than 1,000,000 gross tons of shipping, have become parties ... ". The entry into force was thus not only conditional on the deposit of a specified number of instruments of acceptance, but also subject to the supplementary provision regarding the tonnage which a certain number of States accepting the Convention had to possess. When the first condition (deposit of 21 instruments) was satisfied, the Secretary-General, who under article 61 of the Convention was entrusted with the depositary's normal function of informing the States concerned of the date of entry into force, had to make sure that 7 of the 21 Governments that had deposited valid instruments of acceptance possessed a fleet of a tonnage amounting to not less than 1 million gross tons. Before informing the States concerned, the Secretary-General therefore notified the Chairman of the Preparatory Committee of the Intergovernmental Maritime Consultative Organization of his intention to announce the entry into force of the Convention on the basis of the instruments deposited and the data available to him regarding tonnage. The Chairman of the Preparatory Committee confirmed to the Secretary-General the accuracy of the data, and the Secretary-General then formally notified all the States concerned of the entry into force of the Convention. 228. In a similar fashion, the Montreal Protocol on Substances that Deplete the Ozone Layer 126/ provides as follows: -67- "ARTICLE 16: ENTRY INTO FORCE
The requisite number of instruments was duly received prior to 1 January 1989. However, since the Protocol itself did not contain any indication as to the "estimated global consumption of the controlled substances", the Secretary-General only notified the entry into force of the Protocol after having obtained confirmation that, in the light of data provided by the parties, the number of instruments deposited exceeded the required figure. 229. The conditions for the entry into force of some treaties are even more complex. This is frequently the case for commodities agreements. Thus, for example, article 66 of the International Cocoa Agreement, 1980, 92/ provides as follows: "Article 66: ENTRY INTO FORCE
230. A few treaties provide, as an additional condition to the usual requirement that a specified member of States have accepted to be bound, that those States then specifically agree to the entry into force and so notify the Secretary-General as depositary. Thus article 25 of the Constitution of the United Nations Industrial Development Organization 127/ provides as follows: "Article 25: ENTRY INTO FORCE
-68-
231. In a similar manner,
article 21 of the Statutes of the International Centre for Genetic Engineering
and Biotechnology, concluded on 13 September 1983, 70/ provides as
follows: "Article 21 "Entry into force
232. Thus, whereas
article 25 (2) (b) of the Constitution of the United Nations Industrial
Development Organization Constitution, required notification of acceptance of
entry into force by all States that had deposited instruments before the entry
into force of the Constitution, this was not necessary under the Statutes of the
Centre, since the requirement of a subsequent notification was linked to the
need to "ascertain that sufficient financial resources" had been
ensured. Once 24 States had so ascertained, the Statutes entered into force for
all States that had deposited instruments, even for the States that had
deposited a notification with the Secretary-General. 3. Calculation of the number of
instruments 233. If a State withdraws its instrument (see para. 159) before the conditions for entry into force have been met, the State will cease to be counted for entry into force purposes. And conversely, once the conditions for entry into force have been met, the withdrawal of an instrument previously counted for entry into force will not be taken into account and will not result in the postponement of the entry into force. 234. A special situation occurred in respect of the Special Protocol concerning Statelessness of 12 April 1930, 128/ which was to enter into force upon the deposit of 10 instruments. Nine instruments had already been deposited when, on 25 May 1973, Fiji deposited an instrument of succession; the Secretary-General, in accordance with article 9 of the Protocol, duly established and circulated a depositary notification and a proc6s-verbal notifying the entry into force of the Special Protocol. However, one of the initial nine instruments was that of China, which had been deposited with the League of Nations on 14 February 1935. The current Government of China, upon receipt of the depositary notification, informed the Secretary-General that it did not recognize as binding on China the Protocol signed and ratified by "the defunct Government of China" and that, accordingly, it considered the instrument to be null and void. It was then decided to consider that the conditions for entry into force had in fact never been met, and that the Special Protocol would not enter into force as anticipated. The relevant depositary notification was accordingly circulated. 235. In a similar fashion, if a State that has deposited an instrument ceases to exist after the conditions for entry into force have been met, this is without -69- consequence as concerns entry into force.
Conversely, if the State ceases to exist before the conditions for entry into
force have been met, that State will no longer be counted in the number
necessary for the entry into force. 4. Calculation of the effective
date of initial entry into force 236. Once the Secretary-General, acting in his capacity as depositary, has ascertained that the conditions for entry into force have been met, he announces the corresponding entry into force. if, however, the treaty does not enter into force immediately, but only after a period of time, he calculates the prescribed periods as follows: (a) For clauses such as "The Convention shall enter into force on the thirtieth day following [or after] the deposit with the Secretary-General of the United Nations of the [ ...eth] instrument of ratification ... ", the time runs from the day following the deposit of the last required instrument. Thus, in the above example, if the deposit of the last instrument is effected on 15 March, the period of 30 days will begin on 16 March, and the Convention will enter into force on 14 April;
(b) For clauses such as "The Convention shall enter
into force three months after the deposit ... 11, the time runs from the day of
the deposit of the last required instrument. Thus, in the above example, if the
deposit was effected on 15 March, the Convention would either enter into force
on 15 June (the same day (15) but three months later). Exceptionally, if the
deposit was effected, for example, on 31 March, since there is no corresponding
31 June, the Convention would then enter into force on the last day of June,
i.e., 30 June. Similarly, upon the relevant deposit on 30 November the
Convention would enter into force on 28 February (or on 29 February for leap
years). But, whenever there is a "same", day X months later, that day
is the day of entry into force. 5. Provisional entry into force 237. Agreements may also provide that, upon certain conditions being met, the agreements shall come into force provisionally. Thus, the Protocol of Provisional Application of the General Agreement on Tariffs and Trade, signed at Geneva on 30 October 1947, 129/ provides that:
This condition having been met, the Secretary-General announced that the Protocol had entered into force on 1 January 1948 (although the General Agreement, itself, never entered into force). -70- 238. Many examples of provisional application may be found in commodity agreements. Thus, for example, article 55 (2) of the Sixth International Tin Agreement, 1981, 130/ provides as follows:
239. An even more "subsidiary" provisional entry into force is also frequently provided for in commodity agreements, in the event that the required qualified number of instruments have not been deposited by the date provided for in the Agreement. Thus, paragraph 3 of the above-mentioned article 55 of the Sixth International Tin Agreement provides as follows:
240. A provisional entry into force clause of an unusual character was included in the Agreement adopted on 28 July 1994 relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, article 7 (1) (a) and (b) of which provides as follows: "Article 7 "Provisional application
"(a) States which have consented to its adoption in the General Assembly of the United Nations, except any such State which before 16 November 1994 notifies the depositary in writing either that it will not so apply this Agreement or that it will consent to such application only upon subsequent signature or notification in writing; "(b) States and entities which sign this Agreement, except any such State or entity which notifies the depositary in writing at the time of signature that it will not so apply this Agreement." In that case the traditional requirement of an express notification has been replaced by an implicit consent to the provisional application of the Agreement, -71- merely upon the adoption of the Agreement or its signature. Although such a method of entry into force is not customary and was not envisaged in the Vienna Convention on the Law of Treaties, even for a provisional application, it was deemed acceptable since the provisions in question showed that the parties, clear will was to dispense with formal notifications and the entities concerned may opt out of such "automatic" provisional application by so notifying the depositary. 241. The Secretary-General, as depositary, thus must review and verify the various entry into force clauses and the conditions set forth therein, so as to determine the exact date of the definitive and/or provisional entry into force of the treaties deposited with him, and to advise accordingly all parties concerned. 6. Procès-verbal of entry into force 242. Certain agreements
(for example, the Agreement for Facilitating the International Circulation of
Visual and Auditory Materials of an Educational, Scientific and Cultural
Character of 15 July 1949 131/) provide that a procés-verbal of
entry into force shall be drawn up; in such cases, the Secretary-General duly
complies with that condition in his capacity as depositary. However, such cases
have become very rare, and normally the parties concerned are informed of the
entry into force by a depositary notification (see annex XXIV). B. Subsequent entry into force for additional parties 1. Provisions concerning entry
into force 243. After the initial entry into force, the date of the entry into force for additional parties is also determined by the Secretary-General on the basis of the relevant provisions of the treaty. Sometimes the treaty provides that the treaty shall enter into force on the day of the deposit of the instrument. Other treaties provide for the entry into force after a certain period of time after the deposit. Thus, for example, the International Covenant on Civil and Political Rights 27/ provides that:
244. Provisions concerning the effective date of instruments of ratification, acceptance or accession deposited after the entry into force of an agreement, or after the number of instruments required for entry into force has been reached, can be found in nearly all conventions. These provisions are generally similar to those governing the initial entry into force. For example, article 84, paragraph 1, of the Vienna convention on the Law of Treaties 3/ provides as follows: -72- "Article 84 "Entry into force
and paragraph 2 of that same article provides that:
The Secretary-General thus applies to such instruments of ratification and accession the same practice and the same rules for calculating their effective date as those followed with regard to the initial entry into force of the agreement, the calculation varying according to the relevant provisions of each text. 245. Difficulties have occurred, however, when the subsequent entry into force provisions were ambiguous. Such was the case with the Convention on a Code of Conduct for Liner Conferences of 6 April 1974, 132/ of which article 49 reads as follows: "Article 49. Entry into force
Here and elsewhere, the use of the term "thereafter" (and, sometimes "subsequently") is ambiguous. The consistent practice of the Secretary-General, as depositary, has been to consider that "thereafter" applies to the date of the fulfilment of the conditions for the general entry into force and not to the date of the actual entry into force. This is based on the assumption that all participants are entitled to an equal waiting period between the deposit of their instrument and the effective date. A contrary interpretation would result in an instrument possibly taking effect in one day (if it were deposited the day before the actual date for the general entry into force); while not inconceivable, such an interpretation would result in many practical difficulties. It is precisely to avoid such ambiguity that almost all subsequent treaties deposited with the Secretary-General and which provide for an intervening period follow the wording of article 84, paragraph 2, of the Vienna Convention on the Law of Treaties "For each State ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument ... the Convention shall enter into force on the thirtieth day after deposit ... " (see para. 244 above). Indeed, the prevalence in most treaties of the wording of the Vienna Convention strongly supports the Secretary-General's interpretation. -73- 246. The effective date may be contingent, not upon the deposit of the instrument with the Secretary-General, but on an action taken by another authority. Thus, although this is an exceptional case, article 11 (2) of the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms of 29 October 1971 10/ provides as follows:
In accordance with this provision, the Secretary-General receives the instrument and then advises the Director-General of the World Intellectual Property organization of the deposit. The Director-General of the World Intellectual Property Organization, in turn, notifies the States concerned and communicates to the Secretary-General the date of his notification (see paras. 17 and 18 above). The Secretary-General then performs all necessary depositary duties, including the circulation of the corresponding depositary notification. 247. Similarly, membership in the African Development Bank takes effect under article 64 (2) of its constitutive act 112/ only on the date appointed by its Board and not on the date of the deposit of the corresponding instrument of accession with the Secretary-General, even if such deposit has been effected at an earlier date (see also para. 138 above). -74- Chapter X AMENDMENTS, EXTENSION, SUSPENSION AND TERMINATION OF A TREATY A. Amendments 1. Under procedures Provided
for in the treaty 248. Most treaties
provide for their possible amendment and contain provisions outlining the
corresponding procedure, such as: (a) approval by a number of parties; (b)
decision by a governing body; and (c) revision. (a) Amendments deemed
accepted upon approval by a number of parties 249. For example, Article 108 of the Charter of the United Nations reads as follows: "Article 108
In such cases, where the deposit of instruments
is required, 133/ the Secretary-General, as depositary, proceeds as
he would for the entry into force of an original treaty (see chap. IX). (b) Amendments decided
by a governing body 250. Some treaties, especially constitutive acts, provide that the treaty may be amended by a governing body. Thus article 58 of the Agreement establishing the Caribbean Development Bank of 18 October 1969 134/ provides as follows: "AMENDMENTS
In such cases, the Secretary-General, upon being informed of the decision of the governing body, duly communicates the amendments to all interested parties and -75- circulates the relevant information in the
publication Multilateral Treaties Deposited with the Secretary-General. 135/ c) Amendments effected pursuant to
a revision procedure 251. Treaties may also provide for a revision procedure. For example, article 23 of the International Convention on the Elimination of all Forms of Racial Discrimination of 7 March 1966 136/ provides as follows:
In accordance with these provisions the
Government of Australia proposed amendments to the Convention which were duly
communicated by the Secretary-General to the States parties. At their fourteenth
meeting, the State parties adopted the amendments and decided that they would
take effect upon their approval by the General Assembly and their acceptance by
two thirds of the States parties. The General Assembly endorsed the amendments 137/
by its resolution 47/111 of 16 December 1992. The Secretary-General then duly
communicated the text of the amendments to the States parties so that they might
deposit with him the relevant instruments of acceptance.
252. Other multilateral
treaties, however, do not contain any provisions as to amendments. Such treaties
may nevertheless be amended. One possibility would be by a unanimous decision of
the parties, but in practice amendments are approved in accordance with
established international customary law, as codified by the Vienna Convention on
the Law of Treaties, 3/ the relevant provisions of which read as
follows: "Article 40. Amendment Of
multilateral treaties
253. Amendments are most often effected through an amending protocol. Thus when it appeared necessary to amend the Convention on the Limitation Period in the -76- International Sale of Goods of 14 June 1974, the General Assembly, by its resolution 33/93 of 16 December 1978, decided that the United Nations Conference on Contracts for the Sale of Goods should consider the desirability of preparing a Protocol to the Convention on the Limitation Period on 11 April 1980. The Conference adopted the Protocol, 37/ which was opened for accession in accordance with its provisions. The Secretary-General, as depositary, took all necessary actions, as he would for an original treaty. 254. A difference should be drawn between an amending protocol and a supplementary protocol. The purpose of an amending protocol is to alter the wording of an earlier treaty. Such was the case of the protocol amending the Single Convention on Narcotic Drugs, 1961, of 25 March 1972. 36/ Such protocols are normally open only to the parties to the treaty that is being amended, since they are purely subsidiary, dependent agreements, having no other object than to amend the treaties, and hence it would be meaningless for any State not already bound by the treaties to become party to such protocols. Thus, before accepting any instruments, the Secretary-General must verify that the State concerned is a party to the initial treaty. If it is not, and if participation in the initial treaty is possible, the Secretary-General will so indicate to the State concerned, in order that it may then also participate in the amending protocol, and accordingly in the amended treaty. Once the amending protocol has entered into force, however, other States may become parties to the amended treaty, and possibly also to the unamended treaty in relation to parties to that Treaty not bound by the amending protocol (see, for example, article 19 of the abovementioned Protocol). 255. Participation in supplementary protocols, on the other hand, in view of their object, is not always limited to the parties to the initial treaty. Certain protocols, although linked to an initial treaty, in fact constitute independent and complete international instruments. For example, the Protocol relating to the Status of Refugees 107/ does not amend the Convention relating to the Status of Refugees, 17/ but rather binds the parties to the Protocol to observe the substantive provisions of the Convention as these provisions have been broadened by the provisions of the Protocol. Accordingly, the Protocol is open, not only to the States parties to the Convention, but also to any other State Member of the United Nations or member of any of the specialized agencies or to States to which an invitation to accede may have been addressed by the General Assembly of the United Nations (see article V).
1. Duration 256. Most treaties are concluded for an indefinite period of time. However, some treaties provide for their termination upon a set date, or a date to be determined. For example, under its article 68 (1) the International Coffee Agreement, 1976, 65/ was to remain in force "until 30 September 1992 ... ". In any event, the Secretary-General does not monitor the duration of a treaty and takes no particular action when the treaty simply lapses in accordance with its provisions. For the termination of a treaty by a subsequent action, see paragraphs 260 to 262. For denunciation/withdrawal by a party, see paragraph 160. -77- 2. Extension (prorogation) 257. The duration of a treaty may nevertheless be extended beyond its original term, either in accordance with provisions of the treaty or by decision of the parties. In fact, such an extension would only be the application to a special situation of the general question of amendments, and the Secretary-General's practice with regard to the latter applies mutatis mutandis to extension. 258. An example of extension according to provisions of the treaty may be found in article 57 (b) of the International Tin Agreement 1975, 138/ which reads as follows:
In accordance with that provision, the Agreement was in fact extended by such a resolution of the Council. 139/ 3. Suspension, termination 259. The situation is identical as concerns the termination of the Agreement or its suspension, or the suspension of some of its provisions. An example of such a suspension may be found in International Coffee Council resolution 347 of 3 July 1989, which reads in part as follows:
260. An example of a provision on termination may be found in article 74 (5) of the International Cocoa Agreement, 1972, 140/ which reads as follows: -78-
261. In all these circumstances, as indicated above, the Secretary-General will proceed in the same fashion as for amendments, i.e.: (a) he will inform all parties through a depositary notification of the decision taken by the relevant body; (b) if acceptance of the decision is required, he will circulate its text (see chap. IV) and accept the corresponding instruments in accordance to practice (see chap. VII); and (c) he will include all pertinent information in the publication Multilateral Treaties Deposited with the Secretary-General. 262. Finally, the case may arise where a treaty is terminated under the provisions of a new treaty relating to the same subject-matter, and only the new treaty then applies. Thus the Single Convention on Narcotic Drugs, 1961, 141/ in its article 44 provides for the termination of certain earlier treaties in the narcotics field as between parties to the Single Convention. If not all the parties to the earlier treaty become parties to the later one, then the earlier treaty remains in effect between those that have accepted the later treaty and those which have not done so. In view of the large number and the complexity of possible situations that may result from the application of both the earlier and the later treaty by various States, the Secretary-General does not specify between which States the treaties apply and, when notifying the parties of the deposit of an instrument in respect of the said treaties, restricts himself to recalling the relevant provisions of the treaties concerned. -79- Chapter XI TERRITORIAL APPLICATION A. Background 263. Parts of the territory of a State may under its domestic law be subject to a separate legal regime. A frequent case is that of so-called non-metropolitan Territories versus the metropolitan territory, viz., the mother country as distinct from its colonies and overseas Territories or dependencies. when such non-metropolitan Territories exist, local circumstances frequently make it difficult or impossible to apply the provisions of the treaty to them in the same fashion as to the metropolitan territory. The same may apply to non-autonomous or non-independent Territories for the conduct of whose foreign relations certain States are internationally responsible. 264. On 14 December 1960, the General Assembly adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples. 142/ As at 30 April 1992, more than 60 former colonial Territories, inhabited by more than 80 million people, have attained independence and joined the United Nations as sovereign members. 265. As an increasing
number of Territories have become independent the instances of application of
treaties to such Territories have become fewer and the difficulties encountered
have lost much of their topicality. B. Treaties which include clauses concerning territorial application 1. General principles 266. In order to mitigate
possible difficulties which might arise, a number of treaties include specific
provisions which limit or regulate the application of the treaty to Territories.
Thus article XII of the Convention on the Prevention and Punishment of the Crime
of Genocide of 9 December 1948, 44/ which provides for the possible
extension of the Convention to Territories, reads as follows: "Article XII
267. T reaties may, conversely, provide for the optional exclusion of Territories from their application. Thus the Convention on the Recovery Abroad of Maintenance of 20 June 1956 143/ reads as follows: -80- "Article 12 "TERRITORIAL APPLICATION
268. Finally, other
treaties take into consideration the fact that the previous consent of
non-metropolitan Territories may be required by the domestic law of the State
concerned. Thus, for example, the Protocol for Limiting and Regulating the
Cultivation of the Poppy Plant, the Production of, International and Wholesale
Trade in, and Use of Opium of 23 June 1953 144/ provides in its
article 20 as follows: "Article 20
269. As he does in the case of reservations (see chap. VIII), the Secretary-General, as depositary, follows the relevant provisions of the agreements, when necessary drawing the attention of the Governments concerned to the measures incumbent on them under those provisions and to their effects. 270. Some amending protocols have no territorial application clause, while the agreements they are designed to amend do contain such a clause. Examples include the Protocol of 4 May 1949 145/ amending the Agreement for the Suppression of the Circulation of Obscene Publications, signed at Paris on 4 May 1910, 146/ and the Protocol of 9 December 1948 147/ amending the International Convention relating to Economic Statistics, signed at Geneva on 14 December 1928. 148/ 271. When a State becomes a party to such a protocol it becomes a party to the convention as amended as soon as the amendments have entered into force. If the State had extended the application of the original convention to certain of its non-metropolitan Territories, the amended convention, once in force, applies only to those same Territories. In this connection during the discussions in the Third Committee of the General Assembly at its second regular session on the transfer to the United Nations of the functions and powers exercised by the League of Nations under the 1921 Convention for the Suppression of the Traffic in Women and Children, 149/ the 1933 Convention for the Suppression of the Traffic in Women of Full Age 150/ and the 1923 Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, 151/ each of which -81- contained a territorial application clause, it was proposed that the relevant clauses should be deleted from the Conventions. 152/ Those in favour of deletion pointed out that the Conventions in question were of a humanitarian character and should therefore be applied as widely as possible. on the other hand, States having responsibility for the external affairs of non-metropolitan Territories argued that some of those Territories enjoyed local autonomy and self-government and that their consent had to be secured in advance. The Third Committee recommended the deletion of the territorial clause from the Conventions in question and its recommendation was adopted by the General Assembly. 153/ However, when the question of deleting the territorial application clause from the 1904 International Agreement for the Suppression of the White Slave Traffic, 154/ and the 1910 International Convention and Agreement for the Suppression of the Circulation of Obscene Publications 155/ was raised in the Sixth Committee of the General Assembly during the first part of its third regular session, at the time of the transfer to the United Nations of the functions and powers previously exercised by the French Government under those Agreements, the Sixth Committee and the General Assembly were not in,--favour of the deletion of those clauses. 156/ The only change made was in the relevant paragraph 1 of article 11 of the 1910 Convention on White Slave Traffic, in respect of the transfer of depositary functions from the French Government to the Secretary-General; the paragraph was amended to read:
A similar change was made with regard to
denunciation in respect of colonies, which were also to be notified by the
Secretary-General. 157/ 3. "Federal clauses"
(territorial units) 272. Declarations of territorial application are to be distinguished from declarations made under "federal clauses" in treaties whose subject-matter falls within the legislative jurisdiction of constituent States, provinces or other territorial units. Article 93 (1) of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, 37/ for example, provides as follows: "Article 93
In accordance with the relevant provisions of the Convention, the Government of Canada, when depositing its instrument of accession, declared that the Convention would apply to a number of provinces, and subsequently that the -82- Convention would apply to additional provinces. 158/
The Secretary-General, as depositary, duly circulates and records such
declarations. C. Absence of territorial clauses 1. General principles 273. A number of treaties, however, do not include any specific clause concerning the option of extending the application of a treaty to non-metropolitan Territories for whose relations a State is responsible. Two questions then arise: first, is the treaty, in the absence of a clause, "automatically" applicable to the entire territory of the State concerned; and secondly, may a State, when becoming a party to a treaty that is silent as to territorial application include in its instrument a territorial reservation, i.e., a reservation to the effect that the treaty or some of its provisions shall not apply to certain Territories? In the performance of his depositary duties, the Secretary-General has, when applicable, been guided by the travaux préparatoires, and eventually, precedents, and also by the nature of the treaty. 274. Thus, in the case of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946 30/ and the Convention on the Privileges and Immunities of the Specialized Agencies, adopted by the General Assembly on 21 November 1947, 8/ the Secretary-General took the position, as a matter of principle, that in view of their nature the Conventions should be regarded as automatically applying to the Territories for the international relations of which the acceding States were responsible. 275. When one State made a declaration concerning the non-application to certain of its non-metropolitan Territories of the Convention on the Privileges and Immunities of the Specialized Agencies, the Secretary-General advised States parties to the Convention and the specialized agencies that the instrument had been transmitted for deposit accompanied by a territorial reservation. Since the Administrative Committee on Coordination of the specialized agencies and several States parties expressed objections, the Secretary-General did not treat the instrument as having been deposited and he invited the State that had transmitted the instrument to reconsider its reservation. The practice as concerns the Conventions on Privileges and Immunities is of course of a special nature (see para. 199 above). 276. For other treaties,
it might be considered that, in principle, the absence of a territorial clause
in such treaties would normally lay upon States an obligation to apply the
treaty to their non-metropolitan Territories. Indeed, article 29 of the Vienna
Convention on the Law of Treaties 3/ states as follows: "Article 29 "Territorial scope of
treaties
However, the nature of the treaty and the intention of the negotiating States must also be taken into account. -83- 277. When neither the nature of the treaty nor other special circumstances (e.g., the fact that the treaty is the constitutive act of an international organization) mandate the non-acceptance of the instrument containing a declaration as to the limited application or non-application of a treaty to Territories, the Secretary-General has been guided by the general principles of resolution 598 (VI), which he has deemed to apply, mutatis mutandis, to "reservations" as to the applicability to Territories. Accordingly, he has accepted instruments containing reservations as to the limited application or non-application to Territories, leaving it to the other parties to draw the legal consequences of such declaration that they may see fit. 278. And in fact a number
of States have made such declarations concerning Territories. Some examples of
these are discussed below. 2. Declaration of
non-application 279. Thus, for example, when New Zealand acceded on 20 December 1974 to the Customs Convention on Containers, 1972, 159/ it declared that the accession to the Convention would not extend to the Cook Islands, Niue and the Tokelau Islands. 160/ 280. Possibly after
additional local formalities have been accomplished, some of the notifications
of non-application have subsequently been withdrawn. Thus, for example, when
Denmark ratified the Customs Convention on the International Transport of Goods
under Cover of TIR Carnets of 14 November 1975, 161/ it declared that
the ratification did not extend to the Faeroe Islands ' However, subsequently,
in 1987, Denmark declared that the Convention would henceforth apply to the
Faeroe Islands. 162/ 3. Declaration of
application in respect of certain 281. States have also
deposited notifications of territorial application in respect only of one
Territory, and not to others. Thus, the Netherlands declared that the Convention
relating to the Unification of Certain Rules concerning Collisions on Inland
Navigation of 15 March 1960 163/ would also apply to Suriname 164/
but was silent as to its application to the Netherlands Antilles. When the
United Kingdom acceded, in 1985, to the Convention on a Code of Conduct for
Liner Conferences of 6 April 1974, 132/ it declared that the
Convention would apply to the United Kingdom, Gibraltar and Hong Kong but was
silent as to its other Territories. 165/ By implication, such limited
declarations suggest that, conversely, the treaty is not applicable to other
Territories.
282. States have also deposited notifications of territorial application subsequent to the deposit of their own instrument. Thus, for example, the Netherlands, which in 1983 had deposited an instrument of accession "for the Kingdom in Europe" to the Convention on a Code of Conduct for Liner Conferences of 6 April 1974, subsequently notified the Secretary-General that the Convention would apply as of 1 January 1986, to Aruba. 165/ The deposit of subsequent notifications of territorial application, of course, implies that the State's -84- understanding is that, prior to such notification, the treaty was not applicable to the Territories concerned. As concerns the date when the notification takes effect, the Secretary-General has considered that, in the absence of any specific provisions of the treaty, the territorial application takes effect upon the deposit of the notification. 283. Finally, it is to be
pointed out that the question of whether a treaty was applied to a Territory has
an impact on whether, upon attaining independence, the Territory may
"succeed" to the treaty (see chap. XII). 5. Reservations as to the
scope of the territorial application 284. When depositing notifications of territorial application, States have occasionally made reservations as to the scope of the application. Thus, for example, when the United Kingdom ratified the International Covenant on Economic, Social and Cultural Rights and extended its application to various Territories, it made the following reservation:
285. In all of the above-mentioned circumstances, and as already indicated,-the Secretary-General,-as depositary, has felt that he was not to pass judgement on the admissibility of such declarations and he has duly circulated them (see annex XXV). This position would not appear inconsistent with the provisions of article 29 of the Vienna Convention on the Law of Treaties since it may be considered that the constant practice of certain States (which still comprise "non-metropolitan" Territories) in respect of territorial application and the general absence of objections to such practices have "established a different intention" within the meaning of article 29. -85- Chapter XII SUCCESSIONS TO TREATIES A. Background, definitions and general Principles 1. Background 286. When a non-independent Territory becomes an independent State and accordingly attains the full exercise of external sovereignty, the depositary is faced, as a result of that change, with the problem of the status of the new State as concerns treaties and agreements deposited with him the application of which was extended to the previously non-independent Territory concerned by the State that was at the time responsible for its external relations. 287. At the beginning of
the existence of the United Nations the problem of succession arose only with
respect to treaties concluded under the auspices of the League of Nations. As
time went on, however, an increasing number of United Nations treaties were
concluded and were applied or extended to dependent Territories which
subsequently became independent States (see chap XI). The United Nations
gradually developed the practice described below to determine whether the new
States were to be considered as continuing to be bound by treaties applied to
their Territories by their predecessors. In the past, "new States"
were mostly "non-metropolitan" Territories that had subsequently
become independent. However, more recently, a number of new States have come
into being as a result of the separation of part of the Territory of another
(predecessor) State. It should be noted that the Vienna Convention on Succession
of States in respect of Treaties 167/ was adopted on 23 August 1978,
and although as at I June 1994 it was not yet in force, the Convention in many
of its aspects codifies established customary law on the matter. 2. Definitions 288. The terms hereinafter may be defined as follows (see article 2 of the Convention) :
-86-
3. General principles 289. When a Territory, whether it was a non-metropolitan Territory or part of a separated State, becomes an independent State, it "succeeds" to the "predecessor" State, i.e., it becomes responsible for its international relations in lieu of the predecessor State, as of the date when it so replaces the predecessor State; this date is normally the date of independence of the successor State. As concerns treaties, the successor State has then the option of: (a) participating in any treaty which is open to it by signing and depositing an instrument of ratification or taking a similar action in order to become bound by the treaty, or (b) succeeding to any treaty the application of which was extended to it by the predecessor State (thus preserving the continuity of the application of the treaty), by depositing an instrument of succession in respect thereof. It is to be noted that, in accordance with the rules of customary succession, there is no time-limit for the deposit of such instrument of succession. 290. New States may not only succeed to treaties in force that had been applied to them by the predecessor state prior to the succession of States, but they may also invoke, as successor, treaty actions taken on their behalf by the predecessor State (for example, signature of a treaty). Thus a newly independent State may ratify a treaty if it had been signed by the predecessor State intending that the treaty should extend to the Territory that subsequently became independent. Similarly, a newly independent State may, by a notification to that effect, establish its status as a contracting State to a multilateral treaty not yet in force if the predecessor State was itself a contracting State and had indicated that its action also applied to the then Territory. 291. Such successions,
however, are possible only when it does not appear from the treaty or otherwise
that the participation of the new State would be incompatible with the purpose
of the treaty or that it would require the consent of the other parties. In this
domain the Secretary-General generally follows the established customary law, as
codified by the Vienna Convention on the Succession of States in respect of
Treaties. B. Participation of new States
in-treaties 292. The general question of the participation of States (including new States) in treaties has been examined in chapter V above (especially in paras. 84-89). As concerns the participation of new States in treaties, on the basis of the prior application of another treaty to the Territory before its independence, the first case in which the Secretary-General, as depositary, was confronted with this question was that of the Protocol of 11 December 1946 26/ amending various agreements, conventions and protocols on narcotic drugs concluded prior to the Second World war. Article V of the Protocol provides that it is "open for signature or acceptance by any of the States Parties to the Agreements, Conventions and Protocols on narcotic drugs" which the Protocol of 11 December 1946 was designed to amend and "to which the Secretary-General of the United Nations has communicated a copy". The Secretary-General had then to decide whether new States that had in the meantime become independent, -87- e.g., Syria and Lebanon, to which France had extended the application of certain agreements amended by the Protocol, should be invited to become parties to the Protocol. The Secretary-General satisfied himself that the Governments of Syria and Lebanon considered themselves bound by the agreements on narcotic drugs previously applied in their territory and invited them to become parties to the Protocol amending those agreements. Syria and Lebanon became parties to the Protocol of 11 December 1946 by signature without reservation as to approval, on 11 and 13 December 1946 respectively. Syria and Lebanon likewise became parties, by definitive signature to the Protocol of 12 November 1947 to amend the Conventions of 1921 and 1933 for the Suppression of the Traffic in Women and Children, although this Protocol was in principle only open, under its article III, to States parties to those Conventions. 168/ 293. This practice became
established, albeit with some variations, reflecting the nature of the clauses
in the treaties in question relating to the devolution of obligations under
multilateral treaties as well as the interpretation placed on those clauses by
the parties concerned. Thus, the Hashemite Kingdom of Jordan was invited to
become a party to the Protocol of 11 December 1946, amending the Agreements,
Conventions and Protocols on Narcotic Drugs, and to the Protocol of 12 November
1947, to amend the Convention for the Suppression of the Traffic in women and
Children, in view of the fact that some of those agreements had previously been
applied in the territory of the Hashemite Kingdom of Jordan. C. Participation by succession
294. Some agreements make the exercise of the right of succession subject to restrictive conditions. Thus, the International Cocoa Agreement 1975 66/ provides, in substance, in its article 71, paragraph 4, that notification of succession must be effected within 90 days after the attainment of independence and that it shall take effect as from the date of the Secretary-General's receipt thereof. 169/ 295. The provisions of a treaty may even totally rule out succession. Such would be the case if the treaty was open only to the participation of the members of a regional commission which itself would not be open to the new State. In such cases, the situation is clear and the Secretary-General simply abides by the provisions of the treaty. 296. The agreements that have established an intergovernmental organization usually contain express rules concerning admission to that organization. These rules may exclude succession if, for example, participation is limited to a regional area (see also para. 300). They may also simply have the effect of restricting the possibility of succession. Such is the case for the Convention on the International Maritime Consultative Organization 125/ and the Constitution of the World Health Organization, 93/ both of which require that non-members of the United Nations first deposit an application for membership, which must be approved by the organization concerned. In such cases, the Secretary-General, as depositary, first consults the intergovernmental organization concerned to make sure that the membership, by way of succession, of the newly independent State has been duly approved. -88- 2. In the absence of Provisions relating to succession 297. In the absence of provisions which set specific conditions for succession or which otherwise restrict succession, the Secretary-General is guided by the participation clauses of the treaties as well as by the general principles governing the participation of States (see chap. V). The independence of the new successor State, which then exercises its sovereignty on its territory, is of course without effect as concerns the treaty rights and obligations of the predecessor State as concerns its own (remaining) territory. Thus, after the separation of parts of the territory of the Union of Soviet Socialist Republics (which became independent States), the Union of Soviet Socialist Republics (as the Russian Federation) continued to exist as a predecessor State, and all its treaty rights and obligations continued in force in respect of its territory. 170/ The same applies to the Federal Republic of Yugoslavia (Serbia and Montenegro), which remains as the predecessor State upon separation of parts of the territory of the former Yugoslavia. General Assembly resolution 49/1 of 22 September 1992, to the effect that the Federal Republic of Yugoslavia could not automatically continue the membership of the former Yugoslavia in the United Nations (see para. 89 above), was adopted within the framework of the United, Nations and the context of the Charter of the United Nations, and not as an , indication that the Federal Republic of Yugoslavia was not to be considered a predecessor State. 298. A different situation occurs when the predecessor State disappears. Such was the case when the Czech Republic and Slovakia were formed upon separation of their territories from Czechoslovakia, which ceased to exist. Each of the new States is then in the position of a succeeding State. 299. The Secretary-General accepts instruments of succession by "new States" on the following two conditions: (a) that the treaty was applied to, or the treaty action taken on behalf of, the territory of the new State by the predecessor State prior to the succession of States; and (b) that the territory has been recognized as a State, within the Vienna formula and the practice of the General Assembly (see paras. 79-88 above). 300. The question of whether the treaty had been applied to a Non-Self-Governing Territory before independence raises no difficulty if the treaty had been expressly extended to the Territory by the predecessor State. However, this is not always so (see para. 273). When the treaty was not expressly extended to the Territory, the Secretary-General accepts instruments of succession if the predecessor State was a party to the treaty, if it had not formally excluded the application of the treaty to the Territory and if the succeeding State declares that the treaty was indeed applied in the Territory. If under the provisions of the treaty the participation in the treaty was limited in scope - if, for example, it was only open to States falling within the geographical scope of a regional commission in which the new State could not become a member - the Secretary-General would call the attention of the new State concerned to the apparent inconsistency. As concerns the recognition of the entity as a State, when instruments of succession were transmitted to the Secretary-General by entities which had separated from a predecessor State but which were not yet Members of the United Nations or of a specialized agency, and had not been unequivocally recognized as States, inter alia, by the General Assembly, the Secretary-General indicated to those entities that only after they had been recognized as States could he accept their instruments for deposit. 301. When the instrument is accepted in deposit, the Secretary-General circulates a corresponding depositary notification (see annex XXVI). -89- 3. Reservations withdrawn
or made upon succession 302. In extending the application of a
treaty to a Territory, the State responsible for that Territory's international
relations may have made reservations (see para. 284). When depositing an
instrument of succession, a new State finds itself in the position of a State
that would deposit an instrument of ratification or of a similar nature. At the
time of deposit the succeeding State may, therefore, make any reservations that
would be allowed by the treaty, in the same manner as any new participant. It
may also withdraw any reservations made by the predecessor State (see annex
XXVII). D. "General"
declarations of succession 303. Frequently, newly independent States will submit to the Secretary-General "general" declarations of succession, usually requesting that the declaration be circulated to all States Members of the United Nations. The Secretary-General, duly complies with such a request (see annex XXVIII) but does not consider such a declaration as a valid instrument of succession to any of the treaties deposited with him, and he so informs the Government of the new State concerned. 171/ In so doing, the Secretary-General is guided by the following considerations. 304. The deposit of an instrument of succession results in having the succeeding State become bound, in its own name, by the treaty to which the succession applies, with exactly the same rights and obligations as if that State had ratified or acceded to, or otherwise accepted, the treaty. Consequently, it has always been the position of the Secretary-General, in his capacity as depositary, to record a succeeding State as a party to a given treaty solely on the basis of a formal document similar to instruments of ratification, accession, etc., that is, a notification emanating from the Head of State, the Head of Government or the Minister for Foreign Affairs, which should specify the treaty or treaties by which the State concerned recognizes itself to be bound. 305. General declarations are not sufficiently authoritative to have the States concerned listed as parties in the publication Multilateral Treaties Deposited with the Secretary-General (see annex XXVIII). In essence, those declarations usually indicate that a review of the treaties applied to the territory of the State before accession to independence is in progress and that the State concerned would specify in due course which treaties should continue to be considered as binding and which should be considered as having lapsed. Those declarations also mention that pending completion of the review, it should be "Presumed" (sometimes, "legally presumed") that each treaty had been succeeded to by the State concerned, and that action should be based on that presumption. However, such a presumption, while it could possibly be used by other States as a basis for practical action, can certainly not be taken as a formal and unambiguous acknowledgment of the obligations contained in a given treaty, since it can be unilaterally reversed at any time in respect of any treaty. Finally, it should be emphasized that such "general declarations" are not addressed to the Secretary-General in his capacity as depositary of multilateral treaties, but rather for the purpose of circulation to States Members of the United Nations and of the specialized agencies. 306. In connection with the above, it is to be noted that, in fact, formal instruments of succession to specifically identified treaties are routinely deposited with the Secretary-General by States that have previously deposited a "general declaration of succession", thus avoiding any uncertainty arising under -90- a different practice. And it is only when such instruments are deposited with the Secretary-General that the State concerned is henceforth officially listed in the records of the treaty as a party thereto. It should be emphasized, however, that the position of the Secretary-General, as depositary, is absolutely not binding on states, which may draw from the general declaration of succession any legal consequences which they may deem fit. 307. Other depositories
have in fact taken the opposite view of that of the Secretary-General and have
considered that such general declarations of succession resulted in having the
State concerned become bound to all treaties deposited with them. Those
depositories have accordingly listed those States among the parties. However, as
experience has shown, a number of such States have subsequently informed the
depositary concerned that upon further review they would not succeed to a given
treaty and that the treaty should accordingly be considered as having lapsed as
of the day of independence. Such communications were sometimes circulated years
after the depositary had listed the State concerned as a party; the depositary
then had to cancel the "deposit" of the instrument of succession in
respect of the State and the treaty concerned. E. Devolution agreements 308. At the time of independence, the successor and the predecessor States sometimes conclude a "devolution agreement" which regulates the inheritance by the successor State of treaty rights and obligations that may exist by virtue of the previous application of treaties to the Territory by the predecessor State. Such devolution agreements are optional, however, and their absence does not restrict the capacity of the succeeding State, which is based on the principles of self-determination and of sovereign equality of States. 309. The considerations described in paragraphs 303 to 307 above in respect of general declarations of succession also apply to such devolution agreements concluded between new States and the States formerly responsible for their international relations. Here again, the usually very general wording does not allow for a formal action to be taken by the Secretary-General as the depositary of an individual treaty. For example, in the exchange of letters of 20 June 1966 between the United Kingdom and The Gambia: " ... it is the understanding of the [two Governments] that the Government of The Gambia are in agreement (I) that all obligations and responsibilities of the Government of the United Kingdom which arose from any valid instrument applying to The Gambia immediately before the 18th of February, 1965, continued to apply to The Gambia and were assumed by the Government of The Gambia as from that date ... ". 310. It should further be stressed that participation in a multilateral treaty is normally the result of procedures specifically provided for by the treaty and effected with the parties to that treaty or with the depositary appointed by them. A change in participation entails a change in the obligations and rights of all parties to the treaty, and it cannot therefore result from the provisions of another treaty, by virtue of the rule pacta tertiis nec nocent nec prosunt, which has been codified as article 34 of the Vienna Convention on the Law of Treaties. However, if the devolution agreements unambiguously provide that the successor State shall henceforth assume all obligations and enjoy all rights which would exist by virtue of the application of treaties, the Secretary-General, if he were to receive such a devolution agreement, would treat such an agreement as an instrument of succession, but only if the treaties concerned were clearly and specifically identified. -91- DEPOSITARY NOTIFICATIONS BY THE
SECRETARY-GENERAL 311. Among the duties of the depositary are that of informing all interested parties, by way of depositary notifications, of any action relating to the treaties deposited with him. Such actions as described above, will include:
312. These notifications, however, relate exclusively to the Secretary-General's functions as depositary; any other communications concerning agreements which the Secretary-General, as central authority, may find it necessary to circulate for the information of Member States are circulated by him as Chief Administrative officer of the United Nations, and not as depositary. This difference is reflected in the form of the communications. 313. All notifications concerning the Secretary-General's functions as depositary carry the following heading: (XII. 7) UNITED NATIONS - NATIONS UNIES Reference: C.N.270.1987.TREATIES-7 (Depositary Notification) UNITED NATIONS CONVENTION ON CONDITIONS FOR REGISTRATION OF SHIPS CONCLUDED AT GENEVA ON 7 FEBRUARY 1986 RATIFICATION BY COTE D'IVOIRE The title of the treaty concerned and the date of its conclusion appear in the centre, and under it the description of the action which is the subject of the notification (here, "Ratification by Côte d'Ivoire"). The figure on the top right corner (here, XII.7) refers to the chapter in the publication Multilateral Treaties Deposited with the Secretary-General (ST/LEG/SER.E/-) corresponding to the treaty concerned. On the top left, the reference (here, C.N.270.1987.TREATIES-7) indicates that the depositary notification is the 270th circular note of the year 1987, and the number after TREATIES (here, 7) indicates that this depositary notification is the seventh made in 1987 in -92- respect of the treaty in question. This allows the States concerned to verify that they are not missing any depositary notification in respect of a specific treaty. 314. In the past, the circulars were in the form of letters and were signed by the Legal Counsel on behalf of the Secretary-General. Owing to the increasing depositary workload, the circulars are now in the form of notes verbales and are initialed by the Chief of the Treaty Section of the office of Legal Affairs (see annex XIII). 315. When the Secretary-General transmits information which does not directly relate to his functions as depositary, for example, when he circulates "general declarations" (which do not constitute treaty actions per se) (see para. 302), the corresponding circular note does not bear the symbol 11C.N.TREATIES", but rather the symbol LA/41/TR, which is the reference to general legal questions on treaty matters. In a similar fashion, when non-depositary information , concerning treaties (see paras. 31 and 32) is circulated by other units of the Secretariat on behalf of the Secretary-General, as Chief Administrative Officer, they bear the symbols proper to those units. 316. Circular notes are an essential feature of the Secretary-General's depositary functions. The information they contain is reproduced in substance in the Secretariat's yearly publication Multilateral Treaties Deposited with the Secretary-General (ST/LEG/SER.E/-). -93- Notes 1/ United Nations publication, Sales No. 1955.V.2 (vol. V). 2/ See Repertory of Practice of United Nations Organs, vol. V (United Nations publication, Sales No. 86.V.7), article 102, para. 29. 3/ United Nations, Treaty Series, vol. 1155, p. 331. 4/ United Nations Juridical Yearbook, 1986 (United Nations publication, Sales No. E.94.V.2), p. 218. 5/ Ibid., 1975 (United Nations publication, Sales No. E.77.V.3), p. 87. 6/ See, for example, the comments in Yearbook of the International Law Commission, 1962, vol. I (United Nations publication, Sales No. 62.V.4), 657th meeting, para. 87. 7/ United Nations, Treaty Series, vol. 729, p. 161. 8/ Ibid., vol. 33, p. 261. 9/ See Multilateral Treaties Deposited with the Secretary-General (United Nations publication, Sales No. E.95.V.5), chap. 111.2, Nepal, note 10. 10/ United Nations, Treaty Series, vol. 866, p. 67. 11/ See document TD/Nickel/12. 12/ See United Nations Juridical Yearbook, 1974 (United Nations publication, Sales No. E.76.V.1), p. 190. 13/ See ibid., 1984 (United Nations publication, Sales No. E.91.V.1), p. 181. 14/ United Nations, Treaty Series, vol. 595, p. 287. 15/ See annex to depositary notification C.N.86.1992.TREATIES-2. 16/ United Nations, Treaty Series, vol. 1035, p. 167. 17/ Ibid., vol. 189, p. 137. 18/ Ibid., vol. 1023, p. 15. 19/ Ibid., vol. 1015, p. 243. 20/ Official Records of the Third United Nations Convention on the Law of the Sea, vol. XVII (United Nations publication, Sales No. E.84.V.3), document A/CONF.62/122. 21/ See, for example, General Assembly resolution 37/99 1. 22/ See ENMOD/CONF.II/1. -94- 23/ See, for example, Official Records of the General Assembly, Thirty ninth Session, Supplement No. 45 (A/39/45), vol. 11, annex III, for the opinions given as concerns reservations made in respect of the Convention on the Elimination of All Forms of Discrimination against Women. 24/ See, for example, document CEDAW/SP/13/Rev.1. 25/ United Nations, Treaty Series, vol. 1249, p. 13. 26/ Ibid., vol. 12, p. 179. 27/ Ibid., vol. 999, p. 171. 28/ Ibid., vol. 1042, p. 17. 29/ Ibid., vol. 1201, p. 191. 30/ Ibid., vol. 1, p. 15. 31/ Ibid., vol. 96, p. 271. 32/ Ibid., vol. 1445, No. 24591. 33/ See document TD/Sugar/10/11. 34/ See document TD/Timber/11. 35/ See A/CONF.63/15. 36/ United Nations, Treaty Series, vol. 976, p. 3. 37/ See A/CONF.97/18. 38/ See Official Records of the General Assembly, Seventeenth Session, Supplement No. 9 (A/5209), p. 27. 39/ Ibid., Twenty-first Session. Supplement No. 9 (A/6309/Rev.1), p. 100. 40/ United Nations, Treaty Series, vol. 335, p. 211. 41/ See Yearbook of the International Law Commission, 1962, vol. I (United Nations publication, Sales No. 62.V.4), 662nd meeting, para. 8. 42/ United Nations, Treaty Series, vol. 71, p. 101. 43/ See document TD/Rubber.2/EX/R.1/Add.7. 44/ United Nations, Treaty Series, vol. 78, p. 277. 45/ Ibid., vol. 119, p. 99. 46/ For the determination of whether the Trust Territory of the Pacific Islands was entitled to sign the Convention, see United Nations Juridical Yearbook, 1982 (United Nations publication, Sales No. E.89.V.1), p. 186. 47/ For the list of the signatories of the Final Act, see multilateral Treaties Deposited with the Secretary-General, op. cit., chap. XXI.6, note 2. -95- 48/ See General Assembly resolution 1017 A and B (XI) and Repertory of Practice of United Nations Organs, Supplement No. 2, vol. I (United Nations publication, Sales No. 64.V.5), art. 4, para. 7. 49/ See, inter alia, the statement of the Secretary-General at the 258th plenary meeting of the General Assembly, at the eighteenth session, on 18 November 1963 (Official Records of the General Assembly, Eighteenth Session, 258th plenary meeting); and the statement by the Secretary-General at the 918th meeting of the Sixth Committee, on 25 October 1966 (ibid., Sixth Committee, 918th meeting). 50/ See United Nations Juridical Yearbook, 1973 (United Nations publication, Sales No. E.75.V.1), p. 79, note 9, and ibid., 1974 (United Nations publication, Sales No. E.76.V.1), p. 157. 51/ For the specific question of their possible succession to treaties, see chapter X. For a review of cases with which the Secretary-General was confronted at the inception of the United Nations, see the 1959 summary of practice (ST/LEG/7), para. 108 et. seq. 52/ See United Nations Juridical Yearbook, 1979 (United Nations publication, Sales No. E.82.V.1), p. 172. 53/ See the Constitution of the World Health organization, United Nations, Treaty Series, vol. 15, p. 185. 54/ United Nations, Treaty Series, vol. 754, p. 73. 55 / A/7566. 56/ United Nations, Treaty Series, vol. 399, p. 189. 57/ Ibid., vol. 569, p. 272. 58/ Ibid., vol. 385, p. 137. 59/ See United Nations Juridical Yearbook, 1964 (United Nations publication, Sales No. 66.V.4), p. 245. 60/ See General Assembly resolutions 1747 (XVI) of 28 June 1962, 1760 (XVII) of 31 October 1962, and 1883 (XVIII) of 14 October 1963. 61/ For the Charter of the Centre see United Nations, Treaty Series, vol. 1321, p. 203. 62/ United Nations, Treaty Series, vol. 1129, p. 3. 63/ See Multilateral Treaties Deposited With the Secretary-General, op. cit., chap. XXV.2, note 2. 64/ United Nations, Treaty Series, vol. 1024, p. 3. 65/ Ibid., vol. 1102, p. 27. 66/ Ibid., vol. 1023, p. 253. 67/ Ibid., vol. 1259, p. 3. -96- 68/ Ibid., vol. 647, p. 3. 69/ See United Nations Juridical Yearbook, 1975 (United Nations publication, Sales No. 77.V.3), p. 202. 70/ See document ID.WG.397/8. 71/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. VI.16, note 10. 72/ United Nations, Treaty Series, vol. 1316, p. 205. 73/ Ibid., vol. 1079, p. 89. 74/ League of Nations, Treaty Series, vol. IX, p. 223. 75/ Ibid., vol. XXI, p. 231. 76/ For more extensive developments on this question, see United Nations Juridical Yearbook, 1975 (United Nations publication, Sales No. 77.V.3), p. 196 and ibid., 1964 (United Nations publication, Sales No. 66.V.4), pp. 241 and 243. 77/ See "twenty-first list" of the League of Nations, Official Journal, Special Supplement, No. 193, p. 120. 78/ United Nations, Treaty Series, vol. 1342, p. 137. 79/ Ibid., vol. 336, p. 177. 80/ However, under article 36 (6) such Governments could not, until they had ratified the Agreement or acceded to it, take part, as voting members, in the work of the Council. 81/ United Nations, Treaty Series, vol. 266, p. 3. 82/ See United Nations Juridical Yearbook, 1971 (United Nations publication, Sales No. E.73.V.1), p. 227. 83/ United Nations, Treaty Series, vol. 268, p. 3. 84/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. 1.4. 85/ For examples of such declarations, see Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. IV.4 and IV.9. 86/ General Assembly resolution 39/46. 87/ United Nations, Treaty Series, vol. 319, p. 21. 88/ Ibid., vol. 516, p.,205. 89/ Ibid., vol. 559, p. 285. 90/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. XXI.1, note 5. -97- 91/ United Nations, Treaty Series, Vol. 781, P. 322, and vol. 854, pp. 214 and 220. 92/ Ibid., vol. 1245, p. 221. 93/ Ibid., vol. 14, p. 185. 94/ Ibid., vol. 62, p. 30. 95/ See A/1372. 96/ See A/1494, para. 3. 97/ Official Records of the General Assembly, Sixth Session, Supplement No. 9 (A/1858), p. 2. 98/ Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. IV.9. note 11. 99/ Ibid., chap. IV.8 and IV.n. 100/ See United Nations Juridical Yearbook, 1975 (United Nations publication, Sales No. E.77.V.3), p. 205. 101/ United Nations, Treaty Series, vol. 450, p. 81. 102/ See paragraph 4 (b) of article 20 of the Vienna Convention on the Law of Treaties (see note 2 above), to which due consideration is given by the Secretary-General. 103/ United Nations, Treaty Series, vol. 993, p. 143. 104/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. XI.B.11, declarations by Belgium and other EEC members, and note 7. 105/ United Nations, Treaty Series, vol. 1019, p. 175. 106/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. VI.16, notes 16, 17 and 19. 107/ United Nations, Treaty Series, vol. 606, p. 267. 108/ Multilateral Treaties Deposited-with the Secretary-General, op. cit., chap. XXI.6, Declaration of Philippines. 109/ Ibid., Objections. 110/ Ibid., Objections, note 10. 111/ See Official Records of the General Assembly, Seventeenth Session, Supplement.No. 9 (A/5209), chap. II, para. (25) of commentary to article 20, p. 24. 112/ United Nations, Treaty Series, vol. 1276, p. 3.
113/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. X.2, reservations by Germany and United Kingdom and notes 2, 5 and 7; and chap. XXV.3, reservation by France, and note 3. 114/ See United Nations Juridical Yearbook, 1976 (United Nations publication, Sales No. E.78.V.5), p. 209. 115/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. XXII.1, note 11. 116/ United Nations, Treaty Series, vol. 880, p. 115. 117/ See the relevant footnote (under Germany) in chap. III.1 and 3 and chap. XXVI.1 of Multilateral Treaties Deposited with the Secretary-General, op. cit. 118/ UNEP/WG.190/4. 119/ United Nations, Treaty Series, vol. 1108, p. 151. 120/ See Official Records of the General Assembly, Thirty-first Session, Supplement No. 27 (A/31/27), vol. I, annex I. 121/ United Nations, Treaty Series, vol. 45, p. 149. 122/ Ibid., vol. 818, p. 89. 123/ Ibid., vol. 193, p. 135. 124/ See documents EB.AIR/AC.1/4, annex, and EB.AIR/CRP.1/Add.4. 125/ United Nations, Treaty Series, vol. 289, p. 3. 126/ International Legal Materials, vol. XXVI, p. 1541. 127/ United Nations, Treaty Series, vol. 1401, p. 3. 128/ See document C.27.M.16.1931.V. 129/ United Nations, Treaty Series, vol. 55, p. 308. 130/ Ibid., vol. 1282, p. 205. 131/ Ibid., vol. 197, p. 3. 132/ Ibid., vol. 1334, p. 15. 133/ See paragraph 23 above for a discussion of the question of the depositary of the instruments of ratification of amendments to the Charter. 134/ United Nations, Treaty Series, vol. 712, p. 217. 135/ For amendments to the Agreement establishing the Caribbean Development Bank, see United Nations, Treaty Series, vol. 1021, p. 437 (addendum). 136/ United Nations, Treaty Series, vol. 660, p. 15.
137/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. IV.2 (a) and IV.9 (a). 138/ United Nations, Treaty Series, vol. 1014, p. 43. 139/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. XIX.13. 140/ United Nations, Treaty Series, vol. 882, p. 67. 141/ Ibid., vol. 520, p. 151. 142/ General Assembly resolution 1514 (XV). 143/ United Nations, Treaty Series, vol. 268, p. 3. 144/ Ibid., vol. 456, p. 3. 145/ Ibid., vol. 30, p. 3. 146/ De Martens, Nouveau recueil général des traités, 34me Série, tome VII, p. 266. 147/ United Nations, Treaty Series, vol. 20, p. 229. 148/ League of Nations, Treaty Series, vol. CX, p. 171. 149/ Ibid., vol. IX, p. 145. 150/ Ibid., vol. CL, p. 431. 151/ Ibid., vol. XXVII, p. 213. 152/ See A/412. 153/ See Official Records of the General Assembly, Second Session, Plenary meet ings Verbatim records, vol. 1, p. 355; and General Assembly resolution 126 (11). 154/ League of Nations, Treaty Series, vol. I, p. 83. 155/ Clive Parry, Consolidated Treaty Series, vol. 211, pp. 45 and 54. 156/ See Official Records of the General Assembly, Third Session, part I, Sixth Committee, Summary records, 111th meeting, p. 509. 157/ See General Assembly resolution 256 (111). 158/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. X.10. 159/ United Nations, Treaty Series, vol. 988, p. 43. 160/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. XI.A.15. 161/ United Nations, Treaty Series, vol. 1079, p. 1142. -100- 162/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. XI.A.16. 163/ United Nations, Treaty Series, vol. 572, p. 113. 164/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. XII.3. 165/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. XII.6. 166/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. IVA. 167/ United Nations Juridical Yearbook, 1978 (United Nations publication, Sales No. E.80.V.1), p. 106. 168/ See the 1959 summary of practice (ST/LEG/7), para. 108 ff. 169/ United Nations Juridical Yearbook, 1975 (United Nations publication, Sales No. E.77.V.3), p. 201. 170/ See Multilateral Treaties Deposited with the Secretary-General, op. cit., chap. 1.2, notes 12 and 16. 171/ See Yearbook of the International Law Commission, 1962, vol. II (United Nations publication, Sales No. 62.V.5), chap. II, p. 110. -101- ANNEXES -103- Annex I
-104-
Part I. United Nations Treaties Chapter I. Charter of the United Nations and Statute of the International Court of Justice 1. Charter of the United Nations. Signed at San Francisco on 26 June 1945 2. Declarations of acceptance of the obligations contained in the Charter of the United Nations (Admission of States to membership in the United Nations in accordance with Article 4 of the Charter)
4. Declarations recognizing as compulsory the jurisdiction of the International Court of Justice under Article 36, paragraph 2, of the Statute of the Court
(a) Amendments to Articles 23, 27 and 61 of the Charter of the United Nations. Adopted by the General Assembly of the United Nations in its resolutions 1991 A and B (XVIII) of 17 December 1963 (b) Amendment to Article 109 of the Charter of the United Nations. Adopted by the General Assembly of the United Nations in its resolution 2101 (XX) of 20 December 1965
(c) Amendment to Article 61 of the Charter of the United
Nations. Adopted by the General Assembly of the United Nations in its
resolution 2847 (XXVI) of 20 December 1971 Chapter II. Pacific Settlement
of International Disputes 1. Revised
General Act for the Pacific Settlement of International Disputes. Adopted by the
General Assembly of the United Nations on 28
April 1949 Chapter III. Privileges and
Immunities, Diplomatic and Consular Relations, etc. 1. Convention on the Privileges and Immunities of the United Nations. Adopted by the General Assembly of the United Nations on 13 February 1946 2. Convention on the Privileges and Immunities of the Specialized Agencies. Approved by the General Assembly of the United Nations on 21 November 1947 3. Vienna Convention on Diplomatic Relations. Done at Vienna on 18 April 1961 4. Optional Protocol to the Vienna Convention on Diplomatic Relations concerning Acquisition of Nationality. Done at Vienna on 18 April 1961 5. Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes. Done at Vienna on 18 April 1961 6. Vienna Convention on Consular Relations. Done at Vienna on 24 April 1963 7. Optional Protocol to the Vienna Convention on Consular Relations concerning Acquisition of Nationality. Done at Vienna on 24 April 1963 8. Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes. Done at Vienna on 24 April 1963 9. Convention on Special Missions. Adopted by the General Assembly of the United Nations on 8 December 1969 10. Optional Protocol to the Convention on Special Missions concerning the Compulsory Settlement of Disputes. Adopted by the General Assembly of the United Nations on 8 December 1969 11. Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character. Concluded at Vienna on 14 March 1975 12.
Vienna Convention on Succession of States in Respect of State Property, Archives
and Debts. Concluded at Vienna on 8 April
1983 Chapter IV. Human Rights 1. Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of the United Nations on 9 December 1948 2. International Convention on the Elimination of All Forms of Racial Discrimination. Opened for signature at New York on 7 March 1966 (a) Amendment to article 8 of the International Convention on the Elimination of all Forms of Racial Discrimination. Adopted on 15 January 1992 at the Fourteenth Meeting of the States Parties on 15 January 1992 3. International Covenant on Economic, Social and Cultural Rights. Adopted by the General Assembly of the United Nations on 16 December 1966 4. International Covenant on Civil and Political Rights. Adopted by the General Assembly of the United Nations on 16 December 1966 5. Optional Protocol to the International Covenant on Civil and Political Rights. Adopted by the General Assembly of the United Nations on 16 December 1966 6. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. Adopted by the General Assembly of the United Nations on 26 November 1968 7. International Convention on the Suppression and Punishment of the Crime of Apartheid. Adopted by the General Assembly of the United Nations on 30 November 1973 8. Convention on the Elimination of All Forms of Discrimination against Women. Adopted by the General Assembly of the United Nations on 18 December 1979 (a) Amendment to article 20, paragraph 1 of the Convention on the Elimination of All Forms of Discrimination against Women. Adopted by the States Parties at their eighth meeting on 22 May 1995 (b) Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women. Adopted in New York on 6 October 1999 9. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Adopted by the General Assembly of the United Nations on 10 December 1984 (a) Amendments to articles 17 (7) and 18 (5) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Adopted by the Conference of the States Parties on 8 September 1992 10. International Convention against Apartheid in Sports. Adopted by the General Assembly of the United Nations on 10 December 1985 11. Convention on the Rights of the Child. Adopted by the General Assembly of the United Nations on 20 November 1989 (a) Amendment to article 43 (2) of the Convention on the Rights of the Child adopted by the Conference of the States Parties on 12 December 1995 (b) Optional Protocol to the Convention on the Rights of the Child on involvement of children in armed conflicts. Adopted by the General Assembly of the United Nations on 25 May 2000 (c) Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Adopted by the General Assembly of the United Nations on 25 May 2000 12. Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the Abolition of the Death Penalty. Adopted by the General Assembly on 15 December 1989 13. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Adopted by the General Assembly of the United Nations on 18 December 1990 14.
Agreement establishing the Fund for the Development of the Indigenous Peoples of
Latin America and the Caribbean. Concluded at
Madrid on 24 July 1992 Chapter V. Refugees and
Stateless Persons 1. Constitution of the International Refugee Organization. Opened for signature at Flushing Meadow, New York, on 15 December 1946 2. Convention relating to the Status of Refugees. Signed at Geneva on 28 July 1951 3. Convention relating to the Status of Stateless Persons. Done at New York on 28 September 1954 4. Convention on the Reduction of Statelessness. Concluded at New York on 30 August 1961 5.
Protocol relating to the Status of Refugees. Done at New York on 31 January 1967 Chapter VI. Narcotic Drugs and
Psychotropic Substances 1. Protocol amending the Agreements, Conventions and Protocols on Narcotic Drugs, concluded at The Hague on 23 January 1912, at Geneva on 11 February 1925 and 19 February 1925 and 13 July 1931, at Bangkok on 27 November 1931 and at Geneva on 26 June 1936. Signed at Lake Success, New York, on 11 December 1946 2. International Opium Convention. The Hague, January 23rd, 1912 3. Agreement concerning the Suppression of the Manufacture of, Internal Trade in, and Use of, Prepared Opium. Signed at Geneva on 11 February 1925, and amended by the Protocol signed at Lake Success, New York, on 11 December 1946 4. Agreement concerning the Suppression of the Manufacture of, Internal Trade in, and Use of, Prepared Opium. Geneva, February 11th, 1925 5. International Opium Convention. Signed at Geneva on 19 February 1925 an | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
