(See section 6.2, which illustrates how to arrange with the Treaty Section to sign a multilateral treaty.)
One of the most commonly used steps in the process of becoming party to a treaty is signing that treaty. Multilateral treaties contain signature provisions indicating the place of signature, date of opening for signature, period of signature, etc. Such treaties also list the methods by which a signatory State can become party to them, e.g., by ratification, acceptance, approval or accession.
(See the Summary of Practice, paras. 116-119.)
Multilateral treaties often provide that they will be open for signature only until a specified date, after which signature will no longer be possible. Once a treaty is closed for signature, a State may generally become a party to it by means of accession. Some multilateral treaties are open for signature indefinitely. Most multilateral treaties on human rights issues fall into this category, e.g., the Convention on the Elimination of All Forms of Discrimination against Women, 1979; International Covenant on Civil and Political Rights, 1966; and International Convention on the Elimination of All Forms of Racial Discrimination, 1966. Generally, multilateral treaties deposited with the Secretary-General of the United Nations make provision for signature by all States Members of the United Nations, or of the specialized agencies, or of the International Atomic Energy Agency, or parties to the Statute of the International Court of Justice. However, some multilateral treaties contain specific limitations on participation due to circumstances specific to them. For example:
Article 2 of the Agreement concerning the Establishing of Global Technical Regulations for Wheeled Vehicles, Equipment and Parts which can be fitted and/or be used on Wheeled Vehicles, 1998, limits participation to "[c]ountries that are members of the Economic Commission for Europe (UN/ECE), regional economic integration organizations that are set up by ECE member countries and countries that are admitted to the ECE in a consultative capacity".
Multilateral treaties usually provide for signature subject to ratification, acceptance or approval - also called simple signature. In such cases, a signing State does not undertake positive legal obligations under the treaty upon signature. However, signature indicates the State's intention to take steps to express its consent to be bound by the treaty at a later date. Signature also creates an obligation, in the period between signature and ratification, acceptance or approval, to refrain in good faith from acts that would defeat the object and purpose of the treaty (see article 18 of the Vienna Convention 1969).
See, e.g., article 125(2) of the Rome Statute of the International Criminal Court, 1998: "This Statute is subject to ratification, acceptance or approval by signatory States. ..."
Some treaties provide that States can express their consent to be legally bound solely upon signature. This method is most commonly used in bilateral treaties and rarely used for multilateral treaties. In the latter case, the entry into force provision of the treaty expressly provides that the treaty will enter into force upon signature by a given number of States.
Of the treaties deposited with the Secretary-General, this method is most commonly used in certain treaties negotiated under the auspices of the Economic Commission for Europe, e.g., article 4(3) of the Agreement concerning the Adoption of Uniform Conditions for Periodical Technical Inspections of Wheeled Vehicles and the Reciprocal Recognition of Such Inspections, 1997:
Countries under paragraphs 1 and 2 of this Article may become Contracting Parties to the Agreement:
- By signing it without reservation to a ratification;
- By ratifying it after signing it subject to ratification;
- By acceding to it.
(See the Summary of Practice, paras. 101-115.)
(See section 6.2, which details how to arrange with the Treaty Section to sign a treaty.)
The Head of State, Head of Government or Minister for Foreign Affairs may sign a treaty or undertake any other treaty action on behalf of the State without an instrument of full powers.
A person other than the Head of State, Head of Government or Minister for Foreign Affairs may sign a treaty only if that person possesses a valid instrument of full powers. This instrument empowers the specified representative to undertake given treaty actions. This is a legal requirement reflected in article 7 of the Vienna Convention 1969. It is designed to protect the interests of all States parties to a treaty as well as the integrity of the depositary. Typically, full powers are issued for the signature of a specified treaty.
Some countries have deposited general full powers with the Secretary-General. General full powers do not specify the treaty to be signed, but rather authorise a specified representative to sign all treaties of a certain kind.
(See the model instrument of full powers in annex 3.)
As depositary, the Secretary-General insists on proper full powers for the person (other than a Head of State, Head of Government or Minister for Foreign Affairs) seeking to sign a treaty. Documents not containing a legible signature from one of the above-mentioned authorities are not acceptable (e.g., a telexed message). Signature of a treaty without proper full powers is not acceptable.
There is no specific form for an instrument of full powers, but it must include the following information:
The instrument of full powers must be signed by one of the three above-mentioned authorities and must unambiguously empower a specified person to sign the treaty. Full powers may also be issued by a person exercising the power of one of the above-mentioned three authorities of State ad interim. This should be stated clearly on the instrument.
Full powers are usually limited to one specific treaty and must indicate the title of the treaty. If the title of the treaty is not yet agreed, the full powers must indicate the subject matter and the name of the conference or the international organization where the negotiations are taking place.
Full powers must state the full name and title of the representative authorised to sign. They are individual and cannot be transferred to the "permanent representative ...". Due to the individual character of the full powers, it is prudent to name at least two representatives, in case one is hindered by some unforeseen circumstance from performing the designated act.
Date and place of signature must be indicated.
Official seal. This is optional and it cannot replace the signature of one of the three authorities of State.
(See Note Verbale from the Legal Counsel of the United Nations of 30 September 1998, LA 41 TR/221/1 (extracted in annex 1)).
The following is an example of an instrument of full powers:
I have the honour to inform you that I (name), President of the Republic of (name of State), have given full powers to the Honourable Ms (name), Secretary of State for the Interior and Religious Affairs, to sign on behalf of (name of State) the United Nations Convention against Transnational Organized Crime and the following two Protocols to be opened for signature in Palermo, Italy, from 12th to 15th December 2000:This note constitutes the full powers empowering the Honourable (name) to sign the above-stated Convention and Protocols.
- Protocol against the smuggling of migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime.
- Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime.
The Hon. (name), President of the Republic of (name of State)
[Signature]
Full powers are legally distinct from credentials, which authorise representatives of a State to participate in a conference and sign the Final Act of the conference.
(See section 6.2, which details how to arrange with the Treaty Section to sign a multilateral treaty and to have an instrument of full powers reviewed.)
As custodian of the original version of the treaty, the depositary verifies all full powers prior to signature. If the Secretary-General of the United Nations is the depositary for the treaty in question, the State wishing to sign the treaty should make an appointment for signature with the Treaty Section and submit to the Treaty Section for verification a copy of the instrument of full powers well in advance of signature (facsimiles are acceptable for this purpose). The State should present the original instrument of full powers at the time of signature. Full powers may be submitted by hand or mail to the Treaty Section.
(See the Summary of Practice, paras. 120-143.)
(See section 6.3, which details how to arrange with the Treaty Section to ratify, accept, approve or accede to a treaty.)
In order to become a party to a multilateral treaty, a State must demonstrate, through a concrete act, its willingness to undertake the legal rights and obligations contained in the treaty. In other words, it must express its consent to be bound by the treaty. A State can express its consent to be bound in several ways, in accordance with the final clauses of the relevant treaty. The most common ways, as discussed below, are:
Definitive signature (see section 3.1.4);
Ratification;
Acceptance or approval; and
Accession.
The act by which a State expresses its consent to be bound by a treaty is distinct from the treaty's entry into force (see section 4.2). Consent to be bound is the act whereby a State demonstrates its willingness to undertake the legal rights and obligations under a treaty through definitive signature or the deposit of an instrument of ratification, acceptance, approval or accession. Entry into force of a treaty with regard to a State is the moment the treaty becomes legally binding for the State that is party to the treaty. Each treaty contains provisions dealing with both aspects.
Most multilateral treaties expressly provide for States to express their consent to be bound by signature subject to ratification, acceptance or approval.
Providing for signature subject to ratification allows States time to seek approval for the treaty at the domestic level and to enact any legislation necessary to implement the treaty domestically, prior to undertaking the legal obligations under the treaty at the international level. Once a State has ratified a treaty at the international level, it must give effect to the treaty domestically. This is the responsibility of the State. Generally, there is no time limit within which a State is requested to ratify a treaty which it has signed. Upon ratification, the State becomes legally bound under the treaty.
Ratification at the international level, which indicates to the international community a State's commitment to undertake the obligations under a treaty, should not be confused with ratification at the national level, which a State may be required to undertake in accordance with its own constitutional provisions before it expresses consent to be bound internationally. Ratification at the national level is inadequate to establish a State's intention to be legally bound at the international level. The required actions at the international level shall also be undertaken.
Some multilateral treaties impose specific limitations or conditions on ratification. For example, when a State deposits with the Secretary-General an instrument of ratification, acceptance or approval of, or 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, 1980, it must at the same time notify the Secretary-General of its consent to be bound by any two or more of the protocols related to the Convention. The relevant protocols are: Protocols I, II and III of 10 October 1980; Protocol IV of 13 October 1995; and Protocol II, as amended, of 3 May 1996. Any State that expresses its consent to be bound by Protocol II after the amended Protocol II entered into force on 3 December 1998 is considered to have consented to be bound by Protocol II, as amended, unless it expresses a contrary intention. Such a State is also considered to have consented to be bound by the unamended Protocol II in relation to any State that is not bound by Protocol II, as amended, pursuant to article 40 of the Vienna Convention 1969.
Acceptance or approval of a treaty following signature has the same legal effect as ratification, and the same rules apply, unless the treaty provides otherwise (see article 14(2) of the Vienna Convention 1969). If the treaty provides for acceptance or approval without prior signature, such acceptance or approval is treated as an accession, and the rules relating to accession would apply.
Certain treaties deposited with the Secretary-General permit acceptance or approval with prior signature, e.g., 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, 1980, and the Food Aid Convention, 1999. The European Union uses the mechanism of acceptance or approval frequently (depositary notification C.N.514.2000.TREATIES-6):
[T]he Convention entered into force on 1 July 1999 among the Governments and the intergovernmental organisation which, by 30 June 1999 had deposited their instruments of ratification, acceptance, approval or accession, or provisional application of the Convention, including the European Community. ...
A State may generally express its consent to be bound by a treaty by depositing an instrument of accession with the depositary (see article 15 of the Vienna Convention 1969). Accession has the same legal effect as ratification. However, unlike ratification, which must be preceded by signature to create binding legal obligations under international law, accession requires only one step, namely, the deposit of an instrument of accession. The Secretary-General, as depositary, has tended to treat instruments of ratification that have not been preceded by signature as instruments of accession, and the States concerned have been advised accordingly.
Most multilateral treaties today provide for accession as, for example, article 16 of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 1997. Some treaties provide for States to accede even before the treaty enters into force. Thus, many environmental treaties are open for accession from the day after the treaty closes for signature, as, for example, article 24(1) of the Kyoto Protocol to the United Nations Framework Convention on Climate Change, 1997.
(See the model instrument of ratification, acceptance or approval in annex 4 and the model instrument of accession in annex 5.)
When a State wishes to ratify, accept, approve or accede to a treaty, it must execute an instrument of ratification, acceptance, approval or accession, signed by one of three specified authorities, namely the Head of State, Head of Government or Minister for Foreign Affairs. There is no mandated form for the instrument, but it must include the following:
Title, date and place of conclusion of the treaty concerned;
Full name and title of the person signing the instrument, i.e., the Head of State, Head of Government or Minister for Foreign Affairs or any other person acting in such a position for the time being or with full powers for that purpose issued by one of the above authorities;
An unambiguous expression of the intent of the Government, on behalf of the State, to consider itself bound by the treaty and to undertake faithfully to observe and implement its provisions;
Date and place where the instrument was issued; and
Signature of the Head of State, Head of Government or Minister for Foreign Affairs (the official seal is not adequate) or any other person acting in such a position for the time being or with full powers for that purpose issued by one of the above authorities.
An instrument of ratification, acceptance, approval or accession becomes effective only when it is deposited with the Secretary-General of the United Nations at United Nations Headquarters in New York. The date of deposit is normally recorded as that on which the instrument is received at Headquarters.
States are advised to deliver such instruments to the Treaty Section of the United Nations directly to ensure the action is promptly processed. The individual who delivers the instrument of ratification does not require full powers. In addition to delivery by hand, instruments may also be mailed or faxed to the Treaty Section. If a State initially faxes an instrument, it must also provide the original as soon as possible thereafter to the Treaty Section.
It is recommended that, where feasible, States provide courtesy translations in English and/or French of instruments in other languages submitted for deposit with the Secretary-General. This facilitates the prompt processing of the relevant actions.
(See the Summary of Practice, para. 240.)
Some treaties provide for provisional application, either before or after their entry into force. For example, article 7(1) of the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 1994, provides "If on 16 November 1994 this Agreement has not entered into force, it shall be applied provisionally pending its entry into force". The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995, also provides for provisional application, ceasing upon its entry into force.
A State provisionally applies a treaty that has entered into force when it unilaterally undertakes, in accordance with its provisions, to give effect to the treaty obligations provisionally, even though its domestic procedural requirements for international ratification, approval, acceptance or accession have not yet been completed. The intention of the State would generally be to ratify, approve, accept or accede to the treaty once its domestic procedural requirements have been met. The State may unilaterally terminate such provisional application at any time unless the treaty provides otherwise (see article 25 of the Vienna Convention 1969). In contrast, a State that has consented to be bound by a treaty through ratification, approval, acceptance, accession or definitive signature is governed by the rules on withdrawal and denunciation specified in the treaty as discussed in section 4.5 (see articles 54 and 56 of the Vienna Convention 1969).
(See section 6.4, which shows how to arrange with the Treaty Section to make a reservation or declaration. See also the Summary of Practice, paras. 161-216.)
In certain cases, States make statements upon signature, ratification, acceptance, approval of or accession to a treaty. Such statements may be entitled "reservation", "declaration", "understanding", "interpretative declaration" or "interpretative statement". However phrased or named, any such statement purporting to exclude or modify the legal effect of a treaty provision with regard to the declarant is, in fact, a reservation (see article 2(1)(d) of the Vienna Convention 1969). A reservation may enable a State to participate in a multilateral treaty that the State would otherwise be unwilling or unable to participate in.
Article 19 of the Vienna Convention 1969 specifies that a State may, when signing, ratifying, accepting, approving or acceding to a treaty, make a reservation unless:
The reservation is prohibited by the treaty;
The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
In cases not falling under the above two categories, the reservation is incompatible with the object and purpose of the treaty.
In some cases, treaties specifically prohibit reservations. For example, article 120 of the Rome Statute of the International Criminal Court, 1998, provides: "No reservations may be made to this Statute". Similarly, no entity may make a reservation or exception to the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 1994, except where expressly permitted elsewhere in the agreement.
Article 19 of the Vienna Convention 1969 provides for reservations to be made at the time of signature or when depositing an instrument of ratification, acceptance, approval or accession. If a reservation is made upon simple signature (i.e., signature subject to ratification, acceptance or approval), it is merely declaratory and must be formally confirmed in writing when the State expresses its consent to be bound.
Where the Secretary-General, as depositary, receives a reservation after the deposit of the instrument of ratification, acceptance, approval or accession that meets all the necessary requirements, the Secretary-General circulates the reservation to all the States concerned. The Secretary-General accepts the reservation in deposit only if no such State informs him that it does not wish him to consider it to have accepted that reservation. This is a situation where the Secretary-General's practice deviates from the strict requirements of the Vienna Convention 1969. On 4 April 2000, in a letter addressed to the Permanent Representatives to the United Nations, the Legal Counsel advised that the time limit for objecting to such a reservation would be 12 months from the date of the depositary notification. The same principle has been applied by the Secretary-General, as depositary, where a reserving State to a treaty has withdrawn an initial reservation but has substituted it with a new or modified reservation ( LA 41TR/221 (23-1) (extracted in annex 2)).
Normally, when a reservation is formulated, it must be included in the instrument of ratification, acceptance, approval or accession or be annexed to it and (if annexed) must be separately signed by the Head of State, Head of Government or Minister for Foreign Affairs or a person having full powers for that purpose issued by one of the above authorities.
Where a treaty expressly prohibits reservations, the Secretary-General, as depositary, may have to make a preliminary legal assessment as to whether a given statement constitutes a reservation. If the statement has no bearing on the State's legal obligations, the Secretary-General circulates the statement to the States concerned.
If a statement on its face, however phrased or named (see article 2(1)(d) of the Vienna Convention 1969), unambiguously purports to exclude or modify the legal effects of provisions of the treaty in their application to the State concerned, contrary to the provisions of the treaty, the Secretary-General will refuse to accept that State's signature, ratification, acceptance, approval or accession in conjunction with the statement. The Secretary-General will draw the attention of the State concerned to the issue and will not circulate the unauthorised reservation. This practice is followed only in instances where, prima facie, there is no doubt that the reservation is unauthorised and that the statement constitutes a reservation.
Where such a prima facie determination is not possible, and doubts remain, the Secretary-General may request a clarification from the declarant on the real nature of the statement. If the declarant formally clarifies that the statement is not a reservation but only a declaration, the Secretary-General will formally receive the instrument in deposit and notify all States concerned accordingly.
The Secretary-General, as depositary, is not required to request such clarifications automatically; rather, it is for the States concerned to raise any objections they may have to statements they consider to be unauthorised reservations.
For example, articles 309 and 310 of the United Nations Convention on the Law of the Sea, 1982, provide that States may not make reservations to the Convention (unless expressly permitted elsewhere in the Convention) and that declarations or statements, however phrased or named, may only be made if they do not purport to exclude or modify the legal effect of the provisions of the Convention in their application to the reserving State.
Where a State formulates a reservation that is expressly authorised by the relevant treaty, the Secretary-General, as depositary, informs the States concerned by depositary notification. Unless a translation or an in-depth analysis is required, such a notification is processed and transmitted by e-mail to the States concerned on the date of formulation. A reservation of this nature does not require any subsequent acceptance by the States concerned, unless the treaty so provides (see article 20(1) of the Vienna Convention 1969).
Where a treaty is silent on reservations and a State formulates a reservation consistent with article 19 of the Vienna Convention 1969, the Secretary-General, as depositary, informs the States concerned of the reservation by depositary notification, including by e-mail. Generally, human rights treaties do not contain provisions relating to reservations.
Where a treaty is silent on reservations and a reservation is formulated and subsequently circulated, States concerned have 12 months to object to the reservation, beginning on the date of the depositary notification or the date on which the State expressed its consent to be bound by the treaty, whichever is later (see article 20(5) of the Vienna Convention 1969).
Where a State concerned lodges an objection to a treaty with the Secretary-General after the end of the 12-month period, the Secretary-General circulates it as a "communication". See, e.g., the objection dated 27 April 2000 by a State to a reservation that another State made upon its accession on 22 January 1999 to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, 1989 (depositary notification C.N.276.2000.TREATIES-7):
The Government of (name of State) has examined the reservation made by the Government of (name of State) to the Second Optional Protocol to the International Covenant on Civil and Political Rights. The Government of (name of State) recalls that reservations other than the kind referred to in Article 2 of the Protocol are not permitted. The reservation made by the Government of (name of State) goes beyond the limit of Article 2 of the Protocol, as it does not limit the application of the death penalty to the most serious crimes of a military nature committed during the time of war.
The Government of (name of State) therefore objects to the aforesaid reservation made by the Government of (name of State) to the Second Optional Protocol to the International Covenant on Civil and Political Rights.
This shall not preclude the entry into force of the Second Optional Protocol to the International Covenant on Civil and Political Rights between (name of State) and (name of State), without (name of State) benefiting from the reservation.
Many States have formulated reservations to the International Covenant on Civil and Political Rights, 1966, and the Convention on the Elimination of All Forms of Discrimination against Women, 1979, subjecting their obligations under the treaty to domestic legal requirements. These reservations, in turn, have attracted a wide range of objections from States parties (see Multilateral Treaties Deposited with the Secretary-General ST/LEG/SER.E/19, volume I, part I, chapter IV).
An objection to a reservation "... does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State" (article 20(4)(b) of the Vienna Convention 1969). Normally, to avoid uncertainty, an objecting State specifies whether its objection to the reservation precludes the entry into force of the treaty between itself and the reserving State. The Secretary-General circulates such objections.
See, e.g., the objection by a State to a reservation that another State made upon its accession to the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (depositary notification C.N.204.1998.TREATIES-6):
The Government of (name of State) considers the reservations made by (name of State) regarding article 9, paragraph 2, and article 16 first paragraph (c), (d), (f) and (g), of the Convention on the Elimination of All Forms of Discrimination against Women incompatible with the object and purpose of the Convention (article 28, paragraph 2). This objection shall not preclude the entry into force of the Convention between (name of State) and (name of State).
If a State does not object to a reservation made by another State, the first State is deemed to have tacitly accepted the reservation (article 21(1) of the Vienna Convention 1969).
A State may, unless the treaty provides otherwise, withdraw its reservation or objection to a reservation completely or partially at any time. In such a case, the consent of the States concerned is not necessary for the validity of the withdrawal (articles 22-23 of the Vienna Convention 1969). The withdrawal must be formulated in writing and signed by the Head of State, Head of Government or Minister for Foreign Affairs or a person having full powers for that purpose issued by one of the above authorities. The Secretary-General, as depositary, circulates a notification of a withdrawal to all States concerned, as, for example, depositary notification C.N.899.2000.TREATIES-7:
The reservation submitted by (name of State) with regard to Article 7 (b) on the occasion of the ratification of the Convention on the Elimination of All Forms of Discrimination against Women is withdrawn.
Article 22(3) of the Vienna Convention 1969 provides that the withdrawal of a reservation becomes operative in relation to another State only when that State has been notified of the withdrawal. Similarly, the withdrawal of an objection to a reservation becomes operative when the reserving State is notified of the withdrawal.
An existing reservation may be modified so as to result in a partial withdrawal or to create new exemptions from, or modifications of, the legal effects of certain provisions of a treaty. A modification of the latter kind has the nature of a new reservation. The Secretary-General, as depositary, circulates such modifications and grants the States concerned a specific period within which to object to them. In the absence of objections, the Secretary-General accepts the modification in deposit.
In the past, the Secretary-General's practice as depositary had been to stipulate 90 days as the period within which the States concerned could object to such a modification. However, since the modification of a reservation could involve complex issues of law and policy, the Secretary-General decided that this time period was inadequate. Therefore, on 4 April 2000, the Secretary-General advised that the time provided for objections to modifications would be 12 months from the date of the depositary notification containing the modification (LA 41 TR/221 (23-1) (extracted in annex 2)).
See, e.g., the modification of a reservation made by a State upon its accession to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, 1989 (depositary notification C.N.934.2000.TREATIES-15):
In keeping with the depositary practice followed in similar cases, the Secretary-General proposes to receive the modification in question for deposit in the absence of any objection on the part of any of the Contracting States, either to the deposit itself or to the procedure envisaged, within a period of 12 months from the date of the present depositary notification. In the absence of any such objection, the above modification will be accepted for deposit upon the expiration of the above-stipulated 12-month period, that is on 5 October 2001.
(See the Summary of Practice, paras. 217-220.)
A State may make a declaration about its understanding of a matter contained in or the interpretation of a particular provision in a treaty. Interpretative declarations of this kind, unlike reservations, do not purport to exclude or modify the legal effects of a treaty. The purpose of an interpretative declaration is to clarify the meaning of certain provisions or of the entire treaty.
Some treaties specifically provide for interpretative declarations. For example, when signing, ratifying or acceding to the United Nations Convention on the Law of the Sea, 1982, a State may make declarations with a view to harmonising its laws and regulations with the provisions of that convention, provided that such declarations or statements do not purport to exclude or modify the legal effect of the provisions of the convention in their application to that State.
Treaties may provide for States to make optional and/or mandatory declarations. These declarations are legally binding on the declarants.
Many human rights treaties provide for States to make optional declarations that are legally binding upon them. In most cases, these declarations relate to the competence of human rights commissions or committees (see section 4.3). See, e.g., article 41 of the International Covenant on Civil and Political Rights, 1966:
A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. ...
Where a treaty requires States becoming party to it to make a mandatory declaration, the Secretary-General, as depositary, seeks to ensure that they make such declarations. Some disarmament and human rights treaties provide for mandatory declarations, as, for example, article 3 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 1992. Article 3(2) of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 2000, provides:
Each State Party shall deposit a binding declaration upon ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced.
Mandatory declarations also appear in some treaties on the law of the sea. For example, when an international organization signs the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), or the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995 (1995 Agreement), it must make a declaration specifying the matters governed by UNCLOS in respect of which the organization's member States have conferred competence on the organization, and the nature and extent of that competence. The States conferring such competence must be signatories to UNCLOS. Where an international organization has competence over all matters governed by the 1995 Agreement, it must make a declaration to that effect upon signature or accession, and its member States may not become States parties to the 1995 Agreement except in respect of any of their territories for which the international organization has no responsibility.
Declarations are usually deposited at the time of signature or at the time of deposit of the instrument of ratification, acceptance, approval or accession. Sometimes, a declaration may be lodged subsequently.
Since an interpretative declaration does not have a legal effect similar to that of a reservation, it need not be signed by a formal authority as long as it clearly emanates from the State concerned. Nevertheless, such a declaration should preferably be signed by the Head of State, Head of Government or Minister for Foreign Affairs or a person having full powers for that purpose issued by one of the above authorities. This practice avoids complications in the event of a doubt whether the declaration in fact constitutes a reservation.
Optional and mandatory declarations impose legal obligations on the declarant and therefore must be signed by the Head of State, Head of Government or Minister for Foreign Affairs or by a person having full powers for that purpose issued by one of the above authorities.
The Secretary-General, as depositary, reviews all declarations to treaties that prohibit reservations to ensure that they are prima facie not reservations (see the discussion on prohibited reservations in section 3.5.5). Where a treaty is silent on or authorises reservations, the Secretary-General makes no determination about the legal status of declarations relating to that treaty. The Secretary-General simply communicates the text of the declaration to all States concerned by depositary notification, including by e-mail, allowing those States to draw their own legal conclusions as to its status.
States sometimes object to declarations relating to a treaty that is silent on reservations. The Secretary-General, as depositary, circulates any such objection. For example, the Federal Republic of Germany made declarations to certain treaties with the effect of extending the provisions of those treaties to West Berlin. The Union of Soviet Socialist Republics objected to these declarations (see, e.g., notes 3 and 4 to the Convention on the prohibition of military or any other hostile use of environmental modification techniques, 1976, in Multilateral Treaties Deposited with the Secretary-General, ST/LEG/SER.E/19, volume II, part I, chapter XXVI.1).
Objections generally focus on whether the statement is merely an interpretative declaration or is in fact a true reservation sufficient to modify the legal effects of the treaty. If the objecting State concludes that the declaration is a reservation and/or incompatible with the object and purpose of the treaty, the objecting State may prevent the treaty from entering into force between itself and the reserving State. However, if the objecting State intends this result, it should specify it in the objection.
See, e.g., the objection by a State to a declaration made by another State upon its accession to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (depositary notification C.N.910.1999.TREATIES-13):
The Government of (name of State) notes that the declaration made by (name of State) in fact constitutes a reservation since it is aimed at precluding or modifying the legal effect of certain provisions of the treaty. A reservation which consists in a general reference to domestic law without specifying its contents does not clearly indicate to the other parties to what extent the State which issued the reservation commits itself when acceding to the Convention. The Government of (name of State) considers the reservation of (name of State) incompatible with the objective and purpose of the treaty, in respect of which the provisions relating to the right of victims of acts of torture to obtain redress and compensation, which ensure the effectiveness and tangible realization of obligations under the Convention, are essential, and consequently lodges an objection to the reservation entered by (name of State) regarding article 14, paragraph 1. This objection does not prevent the entry into force of the Convention between (name of State) and (name of State).
An objecting State sometimes requests that the declarant "clarify" its intention. In such a situation, if the declarant agrees that it has formulated a reservation, it may either withdraw its reservation or confirm that its statement is only a declaration.
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(1) For the sake of editorial convenience, the term "State", as used in this Handbook, may include other entities competent at international law to enter into treaties.