CAPACITYBUILDING WORKSHOP ON TREATY LAW AND PRACTICE AND
CAPACITY-BUILDING WORKSHOP ON TREATY LAW AND PRACTICE AND THE DOMESTIC IMPLEMENTATION OF TREATY OBLIGATIONS Wuhan, China 13 -17 October 2009 FINAL CLAUSES IN MULTILATERAL TREATIES Mr. Arturo Requesens Associate Legal Officer Treaty Section, Office of Legal Affairs United Nations
FINAL CLAUSES General Observations l Treaty making: substantive and procedural matters are decided by negotiating States and organizations. l Vienna Convention on the Law of Treaties. 1969 (Vienna Convention, 1969) codified and developed treaty law and states practice. Remarkable example of successful codification of rules and flexible framework to accommodate important developments in state practice. l Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 1986, [1] deals with treaties between one or more States and one or more international organizations, and treaties between international organizations. In essence, this Convention codified the practice of international organizations participation in treaties. [1] Not yet in force
FINAL CLAUSES l A multilateral treaty may be drafted in different forms. However, the common practice is for a treaty to consist of one instrument that is comprised of: l l l l Title Preamble Main text Final Clauses Testimonium Signature pages Annexes (if any)
FINAL CLAUSES What are final clauses? l Treaty provisions regulating procedural aspects of the treaty operation. l Flexible provisions covering a vast variety of matters. l Generally perceived as purely technical provisions but often require important policy decisions.
FINAL CLAUSES Participation Signature Consent to be bound Reservations Declarations Entry into force Provisional application l Depositary l Registration and publication l l l l Relationship to other treaties Settlement of disputes Amendment Status of annexes Withdrawal or denunciation Duration or termination Authentic texts
FINAL CLAUSES Immediate legal effect l Once adopted, a treaty produces certain legal effects: some of its provisions are immediately applicable. Vienna Convention, 1969, article 24 (4) : "The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of adoption of its text. "
FINAL CLAUSES Depositary l Treaties should clearly designate the depositary in a separate provision. The Secretary-General of the United Nations shall be the depositary of this [Convention]. l The inclusion of provisions listing depositary functions is superfluous as depositary functions are well established and codified in article 77 of the Vienna Convention, 1969, unless, of course, additional duties not mentioned in article 77 of the VCLT are added.
FINAL CLAUSES Entry into force For a treaty to be binding on its parties at international law, it must enter into force according to its provisions. l Final clauses will include either the manner or a date of entry into force. l Upon a certain number of States depositing instruments of consent to be bound. l A specific time after a certain number of States have deposited instruments of consent to be bound. l Upon a certain percentage, proportion or category of States depositing instruments of consent to be bound. l On a specific date. l
Entry into force provision Example Agreement on the Privileges and Immunities of the International Criminal Court, 2002 : “The present Agreement shall enter into force thirty days after the date of deposit with the Secretary. General of the tenth instrument of ratification, acceptance, approval or accession”.
Entry into force l For a State after the treaty has entered into force: Agreement on the Privileges and Immunities of the International Criminal Court, 2002 : “. . . For each State ratifying, accepting, approving or acceding to the present Agreement after the deposit of the tenth instrument of ratification, acceptance, approval or accession, the Agreement shall enter into force on the thirtieth day following the deposit with the Secretary-General of its instrument of ratification, acceptance, approval or accession. ”
FINAL CLAUSES Amendment l l In the past, treaties rarely included amendment provisions. Today, most contemporary treaties include a mechanism for their amendment. Amendment procedures are diverse and often elaborate. Amendment procedures have caused practical difficulties for the Parties and the Depositary.
Amendment in accordance with the provisions of the treaty Amendment procedures should avoid complex or unclear rules that may lead to practical difficulties. l Unambiguous formulae for amendments should include rules governing: l l l l Proposal of amendments (by a Party). Submission of the amendment proposal for circulation to all parties (normally by the relevant secretariat). Adoption procedures (if including a specific proportion of votes, clearly indicating whether this proportion relates to all the parties or all the parties present at the time the vote is taken). Circulation of the adopted amendment by the depositary. Consent to be bound (acceptance/ratification). Entry into force (if including a specific proportion, indicating whether the number of acceptances is calculated on the basis of the number of parties at the time of adoption or at the time of acceptance ). Effects (binding only those that accepted or binding all).
Amendment provisions Proposal/Circulation of proposal United Nations convention against corruption, 2003 (article 69): Amendment 1. After the expiry of five years from the entry into force of this Convention, a State Party may propose an amendment and transmit it to the Secretary. General of the United Nations, who shall thereupon communicate the proposed amendment to the States Parties and to the Conference of the States Parties to the Convention for the purpose of considering and deciding on the proposal…
Amendment provisions Adoption l l Adoption procedures (e. g. , consensus, proportion of votes). If including a specific proportion of votes indicate whether the proportion relates to all the parties or all the parties present at the time the vote is taken. United Nations Convention against Transnational Organized Crime, 2000 (article 39): […]The Conference of the Parties shall make every effort to achieve consensus on each amendment. If all efforts at consensus have been exhausted and no agreement has been reached, the amendment shall, as a last resort, require for its adoption a two-thirds majority vote of the States Parties present and voting at the meeting of the Conference of the Parties.
Amendment provisions Consent to be bound/Entry into force (e. g. , number, proportion, non objection). Entry into force provisions should specify the basis on which established percentages are to be calculated to avoid confusion relating to the time of entry into force. l When a treaty is silent on this matter, the practice of the Secretary. General as depositary is to calculate the number of acceptances on the basis of the number of parties to the treaty at the time of acceptance (“moving target” or the “current time” approach). l l Agreement on the Privileges and Immunities of the International Criminal Court, 2002, article 36 (5): “An amendment shall enter into force for States Parties which have ratified or accepted the amendment sixty days after two thirds of the States which were Parties at the date of adoption of the amendment have deposited instruments of ratification or acceptance with the Secretary-General. ”
Amendment provisions Effect l Usually an amendment, upon its entry into force, binds only those States that have formally accepted it. This reflects the general reluctance of States to be bound by amendments that they have not accepted. However, this approach often creates problems of interpretation and implementation since it could establish situations whereby States can be parties to different regimes under a single treaty. The Convention on the Rights of the Child, 1989: “[…] When an amendment enters into force, it shall be binding on those States Parties which have accepted it, other States Parties still being bound by the provisions of the present Convention and any earlier amendments which they have accepted. ”
Amendment provisions Effect l The Amendment to Article 43 (2) of the 1989 Convention on the Rights of the Child, 1995, increasing the membership of the Committee on the Rights of the Child from ten to eighteen experts, entered into force when it was accepted by a twothirds majority of States parties, on 18 November 2002 in accordance with article 50(2) of the Convention. Pursuant to article 50 (3) the amendments only bind those States parties that have notified their acceptance. This would have created an impossible situation where the Committee would have consisted of ten members for some States parties and eighteen members for others. A practical approach was taken by States parties to the Convention in this case and the amendment was deemed to bind all parties. l Where amendment provisions are negotiated, it is important to anticipate these types of problems and draft the provisions accordingly.
Amendment provisions Effect Convention on the rights of persons with disabilities, 2006 : Article 47 Amendments 3. If so decided by the Conference of States Parties by consensus, an amendment adopted and approved in accordance with paragraph 1 of this article which relates exclusively to articles 34, 38, 39 and 40 shall enter into force for all States Parties on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at the date of adoption of the amendment.
Amendment provisions Effect l Due to the need for organizational structures to be applicable to all parties, treaties establishing international organizations include amendment procedures automatically binding on all members. Accordingly, once an amendment has been approved by a specific percentage of members the amendment binds all, including those that did not vote for or ratify it. Article 108 of the Charter of the United Nations reads: Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.
Amendment provisions Effect l For the sake of clarity and simplicity, provisions regarding the entry into force of amendments could include either: l An automatic entry into force for all parties Comprehensive Nuclear-Test-Ban Treaty, 1996, article VII (6): “Amendments shall enter into force for all States Parties 30 days after the deposit of the instruments of ratification or acceptance by all those States Parties casting a positive vote at the Amendment Conference. l An entry into force for all parties based on non-objection by any party Convention on Psychotropic Substances, 1971, article 30 (2): “If a proposed amendment circulated under paragraph 1(b) has not been rejected by any Party within eighteen months after it has been circulated, it shall thereupon enter into force. If, however a proposed amendment is rejected by any Party, the Council may decide, in the light of comments received from Parties, whether a conference shall be called to consider such amendment.
Termination Parties to a bilateral or multilateral treaty may choose to include a termination clause (also called a “sunset” clause). l On a certain date, or by a certain situation or action. l Withdrawals to less than a certain number of Parties to trigger a termination. l Under international treaty law, the agreement continues indefinitely unless it is terminated by agreement or by State action. l
SUMMARY l Matters covered by final clauses should always be considered when drafting a new treaty. l Preferable to include a clause whenever possible. l Well-drafted final clauses facilitate implementation of the treaty provisions by the Parties and the Depositary. l Treaties and multilateral agreements to be deposited with the UN Secretary-General must have their draft final clauses submitted to the Treaty Section for review and comment prior to finalization (ST/SGB/2001/7).
Resources l Final Clauses of Multilateral Treaties Handbook l Available in electronic form at the United Nations web site at http//treaties. un. org l Contact the Treaty Section of the Office of Legal Affairs.
Copyright Notice l Copyright 2009 by the United Nations. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, i. e. , electronic, mechanical, photocopying, recording, or otherwise, without the written permission of the United Nations.
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