(See the Summary of Practice, paras. 9-37.)
The Secretary-General of the United Nations, at present, is the depositary for over 500 multilateral treaties. The Secretary-General derives this authority from:
Article 98 of the Charter of the United Nations;
Provisions of the treaties themselves;
General Assembly resolution 24(1) of 12 February 1946; and
League of Nations resolution of 18 April 1946.
The depositary of a treaty is responsible for ensuring the proper execution of all treaty actions relating to that treaty. The depositary's duties are international in character, and the depositary is under an obligation to act impartially in the performance of those duties.
The Secretary-General is guided in the performance of depositary functions by:
Provisions of the relevant treaty;
Resolutions of the General Assembly and other United Nations organs;
Customary international law; and
Article 77 of the Vienna Convention 1969.
In practice, the Treaty Section of the United Nations Office of Legal Affairs carries out depositary functions on behalf of the Secretary-General.
(See section 6.5, which explains how to arrange with the Treaty Section for deposit of a multilateral treaty with the Secretary-General.)
The negotiating parties to a multilateral treaty may designate the depositary for that treaty either in the treaty itself or in some other manner, e.g., through a separate decision adopted by the negotiating parties. When a treaty is adopted within the framework of the United Nations or at a conference convened by the United Nations, the treaty normally includes a provision designating the Secretary-General as the depositary for that treaty. If a multilateral treaty has not been adopted within the framework of an international organization or at a conference convened by such an organization, it is customary for the treaty to be deposited with the State that hosted the negotiating conference.
When a treaty is not adopted within the framework of the United Nations or at a conference convened by the United Nations, it is necessary for parties to seek the concurrence of the Secretary-General to be the depositary for the treaty before designating the Secretary-General as such. In view of the nature of the Secretary-General's role, being both political and legal, the Secretary-General gives careful consideration to the request. In general, the Secretary-General's policy is to assume depositary functions only for:
Multilateral treaties of worldwide interest adopted by the General Assembly or concluded by plenipotentiary conferences convened by the appropriate organs of the United Nations that are open to wide participation; and
Regional treaties adopted within the framework of the regional commissions of the United Nations that are open to participation by the entire membership of the relevant commissions.
Since final clauses are critical in providing guidance to the depositary and in discharging the depositary function effectively, it is important that the depositary be consulted in drafting them. Unclear final clauses may create difficulties in interpretation and implementation both for States parties and for the depositary.