(See the Repertory of Practice, Article 102, para. 1).
Article 102 of the Charter of the United Nations provides that:
- Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
- No party to any such treaty or international agreement, which has not been registered in accordance with the provisions of paragraph 1 of this Article, may invoke that treaty or agreement before any organ of the United Nations.
Thus, States Members of the United Nations have a legal obligation to register treaties and international agreements with the Secretariat, and the Secretariat is mandated to publish registered treaties and international agreements. Within the Secretariat, the Treaty Section is responsible for these functions.
Registration, not publication, is the prerequisite for a treaty or international agreement to be capable of being invoked before the International Court of Justice or any other organ of the United Nations.
The objective of article 102, which can be traced back to article 18 of the Covenant of the League of Nations, is to ensure that all treaties and international agreements remain in the public domain and thus assist in eliminating secret diplomacy. The Charter of the United Nations was drafted in the aftermath of the Second World War. At that time, secret diplomacy was believed to be a major cause of international instability.
(See the Repertory of Practice, Article 102, para. 2, and the annex to the General Survey.)
Recognising the need for the Secretariat to have uniform guidelines for implementing article 102, the General Assembly adopted certain Regulations to give effect to article 102 (see the Abbreviations section for the source of the Regulations). The Regulations treat the act of registration and the act of publication as two distinct operations. Parts one and two of the Regulations (articles 1-11) deal with registration and filing and recording. Part three of the Regulations (articles 12-14) relates to publication.
(See the Repertory of Practice, Article 102, para. 15.)
When the Secretariat receives instruments for the purpose of registration, the Treaty Section examines the instruments to determine whether they are capable of being registered. The Secretariat generally respects the view of a party submitting an instrument for registration that, in so far as that party is concerned, the instrument is a treaty or an international agreement within the meaning of Article 102. However, the Secretariat examines each instrument to satisfy itself that it, prima facie, constitutes a treaty. The Secretariat has the discretion to refrain from taking action if, in its view, an instrument submitted for registration does not constitute a treaty or an international agreement or does not meet all the requirements for registration stipulated by the Regulations (see section 5.6).
Where an instrument submitted fails to comply with the requirements under the Regulations or is unclear, the Secretariat places it in a "pending" file. The Secretariat then requests clarification, in writing, from the submitting party. The Secretariat will not process the instrument until it receives such clarification.
Where an instrument is registered with the Secretariat, this does not imply a judgement by the Secretariat of the nature of the instrument, the status of a party, or any similar question. Thus, the Secretariat's acceptance for registration of an instrument does not confer on the instrument the status of a treaty or an international agreement if it does not already possess that status. Similarly, registration does not confer on a party to a treaty or international agreement a status that it would not otherwise have.
(See the Repertory of Practice, Article 102, paras. 18-30.)
The Charter of the United Nations does not define the terms treaty or international agreement. Article 1 of the Regulations provides guidance on what comprises a treaty or international agreement by adding the phrase "whatever its form and descriptive name". Therefore, the title and form of a document submitted to the Secretariat for registration are less important than its content in determining whether it is a treaty or international agreement. An exchange of notes or letters, a protocol, an accord, a memorandum of understanding and even a unilateral declaration may be registrable under Article 102.
A treaty or international agreement under Article 102 (other than a unilateral declaration) must be concluded between at least two parties possessing treaty-making capacity. Thus, a sovereign State or an international organization with treaty-making capacity can be a party to a treaty or international agreement.
Many international organizations established by treaty or international agreement have been specifically or implicitly conferred treaty-making capacity. Similarly, some treaties recognise the treaty-making capacity of certain international organizations such as the European Community. However, an international entity established by treaty or international agreement may not necessarily have the capacity to conclude treaties.
A treaty or international agreement must impose on the parties legal obligations binding under international law, as opposed to mere political commitments. It must be clear on the face of the instrument, whatever its form, that the parties intend to be legally bound under international law.
In one instance, the Secretariat concluded that an instrument submitted for registration, which contained a framework for creating an association of parliamentarians, was not registrable under Article 102. Accordingly, the instrument was not registered. The Secretariat determined that the document submitted was not a treaty or international agreement among international juridical persons to create rights and obligations enforceable under international law.
(See the Repertory of Practice, Article 102, paras. 43-44, 55-57 and 67-70, and article 1 of the Regulations in the annex to the General Survey.)
Under Article 102 of the Charter of the United Nations (see section 5.1), treaties and international agreements of which at least one party is a Member of the United Nations may be registered with the Secretariat, provided that the treaty or international agreement has entered into force between at least two of the parties and the other requirements for registration are met (article 1 of the Regulations) (see section 5.6).
As mentioned above, Members of the United Nations are obliged to register, under Article 102, all treaties and international agreements concluded after the coming into force of the Charter of the United Nations. Thus, the onus to register rests with States Members of the United Nations. Although this obligation is mandatory for States Members of the United Nations, it does not preclude international organizations with treaty-making capacity or non-member States from submitting for registration under Article 102 treaties or international agreements entered into with a State Member.
A specialized agency is permitted to register with the Secretariat a treaty or international agreement that is subject to registration in the following cases (article 4(2) of the Regulations):
- Where the constituent instrument of the specialized agency provides for such registration;
- Where the treaty or agreement has been registered with the specialized agency pursuant to the terms of its constituent instrument;
- Where the specialized agency has been authorized by the treaty or agreement to effect registration.
In accordance with article 1(3) of the Regulations, which provides for registration to be effected "... by any party ..." to a treaty or international agreement, the specialized agency may also register those treaties and international agreements to which it itself is a party.
(See the Repertory of Practice, Article 102, paras. 71-81, and article 10 of the Regulations in the annex to the General Survey.)
The Secretariat files and records treaties or international agreements voluntarily submitted to the Secretariat and not subject to registration under Article 102 of the Charter of the United Nations or the Regulations. The requirements for registration outlined in section 5.6 in relation to submission of treaties and international agreements for registration apply equally to submission of treaties and international agreements for filing and recording.
Article 10 of the Regulations provides for the Secretariat to file and record the following categories of treaties and international agreements where they are not subject to registration under Article 102:
Treaties or international agreements entered into by the United Nations or by one or more of the specialized agencies. This covers treaties and international agreements between:
The United Nations and non-member States;
The United Nations and specialized agencies or international organizations;
Specialized agencies and non-member States;
Two or more specialized agencies; and
Specialized agencies and international organizations.
Although not expressly provided for in the Regulations, it is also the practice of the Secretariat to file and record treaties or international agreements between two or more international organizations other than the United Nations or a specialized agency.
Treaties or international agreements transmitted by a Member of the United Nations which were entered into before the coming into force of the Charter of the United Nations, but which were not included in the treaty series of the League of Nations; and
Treaties or international agreements transmitted by a party not a member of the United Nations, which were entered into before or after the coming into force of the Charter of the United Nations and which were not included in the treaty series of the League of Nations.
(See the Repertory of Practice, Article 102, paras. 45-54, and article 4(1) of the Regulations in the annex to the General Survey.)
Article 4(a) of the Regulations provides that every treaty or international agreement that is subject to registration and to which the United Nations is a party shall be registered ex officio. Ex officio registration is the act whereby the United Nations unilaterally registers all treaties or international agreements to which it is a party. Although not expressly provided for in the Regulations, it is the practice of the Secretariat to register ex officio subsequent actions relating to a treaty or international agreement that the United Nations has previously registered ex officio.
Where the Secretary-General is the depositary of a multilateral treaty or agreement, the United Nations also registers ex officio the treaty or international agreement and subsequent actions to it after the relevant treaty or international agreement has entered into force (see article 4(c) of the Regulations).
A multilateral treaty is an international agreement concluded between three or more parties, each possessing treaty-making capacity (see section 5.3.3).
The majority of treaties registered pursuant to Article 102 of the Charter of the United Nations are bilateral treaties. A bilateral treaty is an international agreement concluded between two parties, each possessing treaty-making capacity (see section 5.3.3). In some situations, several States or organizations may join together to form one party. There is no standard form for a bilateral treaty.
An essential element of a bilateral treaty is that both parties have reached agreement on its content. Accordingly, reservations and declarations are generally inapplicable to bilateral agreements. However, where the parties to a bilateral treaty have made reservations or declarations, or agreed on some other interpretative document, such instrument must be registered together with the treaty submitted for registration under Article 102 of the Charter of the United Nations (see article 5 of the Regulations).
(See the Repertory of Practice, Article 102, para. 24.)
Unilateral declarations that constitute interpretative, optional or mandatory declarations (see sections 3.6.1 and 3.6.2) may be registered with the Secretariat by virtue of their relation to a previously or simultaneously registered treaty or international agreement.
Unlike interpretative, optional and mandatory declarations, some unilateral declarations may be regarded as having the character of international agreements in their own right and are registered as such. An example is a unilateral declaration made under Article 36(2) of the Statute of the International Court of Justice, recognizing as compulsory the jurisdiction of the International Court of Justice. These declarations are registered ex officio (see section 5.4.3) when deposited with the Secretary-General.
A political statement lacking legal content and not expressing an understanding relating to the legal scope of a provision of a treaty or international agreement cannot be registered with the Secretariat.
(See the Repertory of Practice, Article 102, and article 2 of the Regulations in the annex to the General Survey.)
Subsequent actions effecting a change in the parties to, or the terms, scope or application of, a treaty or international agreement previously registered can be registered with the Secretariat. For example, such actions may involve ratifications, accessions, prolongations, extensions to territories, or denunciations. In the case of bilateral treaties, it is generally the party responsible for the subsequent action that registers it with the Secretariat. However, any other party to such agreement may assume this role. In the case of a multilateral treaty or agreement, the entity performing the depositary functions usually effects registration of such actions (see section 5.4.3 in relation to treaties or international agreements deposited with the Secretary-General).
Where a new instrument modifies the scope or application of a parent agreement, such new instrument must also be registered with the Secretariat. It is clear from article 2 of the Regulations that for the subsequent treaty or international agreement to be registered, the prior treaty or international agreement to which it relates must first be registered. In order to maintain organizational continuity, the registration number that has been assigned for the registration of the parent treaty or international agreement is also assigned to the subsequent treaty or international agreement.
(See the Repertory of Practice, Article 102, and article 5 of the Regulations in the annex to the General Survey.)
An instrument submitted for registration must meet the following general requirements:
As mentioned above, the Secretariat reviews each document submitted for registration to ensure that it falls within the meaning of a treaty or international agreement under Article 102 (see section 5.3).
(See the model certifying statement in annex 7.)
Article 5 of the Regulations requires that a party or specialized agency registering a treaty or international agreement certify that "the text is a true and complete copy thereof and includes all reservations made by parties thereto". The certified copy must include:
The title of the agreement;
The place and date of conclusion;
The date and method of entry into force for each party; and
The authentic languages in which the agreement was drawn up.
When reviewing the certifying statement, the Secretariat requires that all enclosures such as protocols, exchanges of notes, authentic texts, annexes, etc., mentioned in the text of the treaty or international agreement as forming a part thereof, are appended to the copy transmitted for registration. The Secretariat brings the omission of any such enclosures to the attention of the registering party and defers action on the treaty or international agreement until the material is complete.
Parties must submit ONE certified true and complete copy of all authentic text(s), and TWO additional copies or ONE electronic copy to the Secretariat for registration purposes. The hard copy version(s) should be capable of being reproduced in the United Nations Treaty Series.
Further to General Assembly Resolution 53/100, the Secretariat strongly encourages parties to submit, in addition to a certified true copy on paper, an electronic copy, i.e., on computer diskette, CD or as an attachment by e-mail, of the submitted documentation. This assists greatly in the registration and publication process. The preferred format for a treaty or international agreement submitted on diskette is Word Perfect 6.1 for Windows, as this is the system that is used in the publication of the United Nations Treaty Series. Treaties may also be submitted in Microsoft Word for Windows or as a text file (the generic ASCII text format for saving documents). The preferred formats for a treaty or international agreement submitted by e-mail are Word, WordPerfect, or image (tiff) format. All electronic submissions by e-mail should be directed to TreatyRegistration@un.org.
Member States and international organizations are also reminded of the resolutions of the General Assembly, initially adopted on 12 December 1950 (A/RES/482 (V)) and most recently repeated on 21 January 2000 (A/RES/54/28), urging States to provide English and/or French translations of treaties submitted for registration with the United Nations Secretariat where feasible. Courtesy translations in English and French, or any of the other official languages of the United Nations, greatly assist in the timely and cost-effective publication of the United Nations Treaty Series.
The documentation submitted must specify the date of entry into force of the treaty or international agreement. A treaty or international agreement will only be registered after it has entered into force.
The documentation submitted must specify the method of entry into force of the treaty or international agreement. This is normally provided in the text of the treaty or international agreement.
The documentation submitted must specify the place and date of conclusion of the treaty or international agreement. This is generally inserted on the last page immediately above the signature. The names of the signatories should be specified unless they are in typed form as part of the signature block.
(See the Repertory of Practice, Article 102, and article 8 of the Regulations in the annex to the General Survey.)
The database of instruments registered and the record of instruments filed and recorded are kept in English and French. The database and record contain the following information, in respect of each treaty or international agreement:
Date of receipt of the instrument by the Secretariat of the United Nations;
Registration number or filing and recording number;
Title of the instrument;
Names of the parties;
Date and place of conclusion;
Date of entry into force;
Existence of any attachments, including reservations and declarations;
Languages in which it was drawn up;
Name of the party or specialized agency registering the instrument or submitting it for filing and recording; and
Date of registration or filing and recording.
See the Repertory of Practice, Article 102, and article 6 of the Regulations in the annex to the General Survey.)
Under article 6 of the Regulations, the date the Secretariat of the United Nations receives all the specified information relating to the treaty or international agreement is deemed to be the date of registration. A treaty or international agreement registered ex officio by the United Nations is deemed to be registered on the date on which the treaty or international agreement comes into force between two or more of the parties thereto. However, if the Secretariat receives the treaty or international agreement after the date of its entry into force, the date of registration is the first available date of the month of receipt.
In accordance with article 1 of the Regulations, registration is effected by a party and not by the Secretariat. The Secretariat makes every effort to complete registration on the date of submission. However, due to certain factors including volume of instruments deposited, need for translations, etc., a certain amount of time may elapse between the receipt of a treaty or international agreement and its inscription in the database.
Registering parties have an important obligation to ensure that documents submitted for registration are complete and accurate in order to avoid delays in the registration and publication processes. In cases where submissions are incomplete or defective, the date of registration of the treaty or international agreement is deemed to be the date of receipt of all of the required documentation and information and not the date of the original submission.
(See the Repertory of Practice, Article 102, and article 7 of the Regulations in the annex to the General Survey.)
Once a treaty or international agreement is registered, the Secretariat issues to the registering party a certificate of registration signed by the Secretary-General or a representative of the Secretary-General. Upon request, the Secretariat will provide such a certificate to all signatories and parties to the treaty or international agreement. According to established practice, the Secretariat does not issue certificates of registration in respect of treaties or international agreements that are registered ex officio (see section 5.4.3) or filed and recorded (see section 5.4.2).
(See the Repertory of Practice, Article 102, paras. 82-107, and articles 12-14 of the Regulations in the annex to the General Survey.)
(See the Repertory of Practice, Article 102, and articles 13-14 of the Regulations in the annex to the General Survey.)
Each month, the Secretariat publishes a statement of the treaties and international agreements registered, or filed and recorded, during the preceding month (see article 13 of the Regulations). The Monthly Statement does not contain the texts of treaties or international agreements, but provides certain attributes, in English and French, of the treaties or international agreements registered or filed and recorded, such as the:
Registration number or filing and recording number;
Title of the instrument;
Names of the parties between whom it was concluded;
Date and place of conclusion;
Date and method of entry into force;
Existence of any attachments, including reservations and declarations;
Languages in which it was drawn up;
Name of the party or specialized agency registering the instrument or submitting it for filing and recording; and
Date of registration or filing and recording.
The Monthly Statement is divided into two parts. Part I lists the treaties registered. Part II lists the treaties filed and recorded. In addition, the Monthly Statement contains annexes A, B, and C. Annexes A and B are devoted to certified statements (e.g., ratifications or accessions) and subsequent agreements relating to treaties or international agreements registered or filed and recorded. Annex C lists subsequent actions relating to treaties or international agreements registered with the League of Nations.
Article 12 of the Regulations provides that the Secretariat shall publish as soon as possible, in a single series every treaty or international agreement that is registered, or filed and recorded. Treaties are published in the United Nations Treaty Series in their authentic languages, followed by translations in English and French, as required. Subsequent actions are published in the same manner. The Secretariat requires clear copies of treaties and international agreements for publication purposes.
Originally, article 12 of the Regulations required the Secretariat to publish in full all treaties and international agreements registered or filed and recorded with the Secretariat. The General Assembly modified this framework in its resolution 33/141 of 19 December 1978 in light of the substantial increase in treaty making on the international plane and the publication backlog that existed at that time (Report of the Secretary-General, document A/33/258, 2 October 1978, paras. 3 to 7).
According to article 12(2) of the Regulations, as amended in 1978, the Secretariat is no longer required to publish in extenso, i.e., in full, bilateral treaties falling within one of the following categories:
- Assistance and co-operation agreements of limited scope concerning financial, commercial, administrative or technical matters;
- Agreements relating to the organization of conferences, seminars or meetings;
- Agreements that are to be published otherwise than in the [United Nations Treaty Series] by the United Nations Secretariat or by a specialized or related agency.
The publication backlog continued to grow, however, and in 1996 stood at 11 years, i.e., an instrument registered in 1987 was scheduled to be published by 1998 (this backlog has been reduced to approximately 2 1/2 years as at 2001). As a result, in 1997, the General Assembly extended the limited publication policy to multilateral treaties, so that the Secretariat now has discretion not to publish in extenso bilateral and multilateral treaties or agreements falling within one of the categories listed under article 12(2)(a) to (c) (General Assembly Resolution A/RES/52/153 of 15 December 1997):
The General Assembly...
7. Invites the Secretary-General to apply the provisions of article 12, paragraph 2, of the Regulations to give effect to Article 102 of the Charter of the United Nations to multilateral treaties falling within the terms of article 12, paragraph 2 (a) to (c); ...
Lengthy lists of products attached to bilateral or multilateral trade agreements also fall within the limited publication policy. In addition, agreements of the European Union are published only in English and French.
Today, approximately 25 per cent of the treaties registered are subject to the limited publication policy. An example of a multilateral treaty or agreement falling under the extended scope of article 12(2) is the Agreement concerning the Adoption of Uniform Technical Prescriptions for Wheeled Vehicles, Equipment and Parts which can be fitted and/or be used on Wheeled Vehicles and the Conditions for Reciprocal Recognition of Approvals Granted on the Basis of these Prescriptions, 1958. Due to the highly technical nature of this agreement, which contains over 100 annexed regulations, all of which are subject to amendments on a regular basis, the Secretariat does not publish this agreement in full. However, it is available on the United Nations Optical Disk System and is published by the United Nations Economic Commission for Europe (document E/ECE/324 - E/ECE/TRANS/505; see UNECE web site).
In determining whether or not a treaty or international agreement should be published in extenso, the Secretariat is guided by the letter and spirit of the Charter of the United Nations and article 12(3) of the Regulations. The primary criterion in making this determination is the requirement that the Secretariat shall:
... duly take into account, inter alia, the practical value that might accrue from in extenso publication.
Under article 12(3) of the Regulations, the Secretariat may reverse a decision not to publish in extenso at any time.
Where the Secretariat exercises the limited publication option in relation to treaties or international agreements registered or filed and recorded, their publication is limited to the following information in accordance with article 12(5) of the Regulations:
Registration number or filing and recording number;
Title of the instrument;
Names of the parties between whom it was concluded;
Date and place of conclusion;
Date and method of entry into force;
Duration of the treaty or international agreement (where appropriate);
Languages in which it was concluded;
Name of the party or specialized agency registering the instrument or submitting it for filing and recording;
Date of registration or filing and recording; and
Where appropriate, reference to publications in which the complete text of the treaty or international agreement is reproduced.
Treaties and international agreements that the Secretariat does not publish in extenso are identified as such in the Monthly Statement with an asterisk.