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Definition
of key terms used in the UN Treaty Collection
This
introductory note seeks to provide a basic - but not an exhaustive - overview
of the key terms employed in the United Nations Treaty Collection to refer to
international instruments binding at international law: treaties, agreements,
conventions, charters, protocols, declarations, memoranda of understanding,
modus vivendi and exchange of notes. The purpose is to facilitate a general
understanding of their scope and function. Over the
past centuries, state practice has developed a variety of terms to refer to
international instruments by which states establish rights and obligations
among themselves. The terms most commonly used are the subject of this
overview. However, a fair number of additional terms have been employed, such
as "statutes", "covenants", "accords" and
others. In spite of this diversity of terminology, no precise nomenclature
exists. In fact, the meaning of the terms used is variable, changing from
State to State, from region to region and instrument to instrument. Some of
the terms can easily be interchanged: an instrument that is designated
"agreement" might also be called "treaty". The title
assigned to such international instruments thus has normally no overriding
legal effects. The title may follow habitual uses or may relate to the
particular character or importance sought to be attributed to the instrument
by its parties. The degree of formality chosen will depend upon the gravity
of the problems dealt with and upon the political implications and intent of
the parties. Although
these instruments differ from each other by title, they all have common
features and international law has applied basically the same rules to all of
these instruments. These rules are the result of long practice among the
States, which have accepted them as binding norms in their mutual relations.
Therefore, they are regarded as international customary law. Since there was
a general desire to codify these customary rules, two international
conventions were negotiated. The 1969 Vienna Convention on the Law of
Treaties ("1969 Vienna Convention"), which entered into force on 27
January 1980, contains rules for treaties concluded between States. The 1986
Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organizations ("1986 Vienna
Convention"), which has still not entered into force, added rules for
treaties with international organizations as parties. Both the 1969 Vienna
Convention and the 1986 Vienna Convention do not distinguish between the
different designations of these instruments. Instead, their rules apply to
all of those instruments as long as they meet certain common requirements. Article
102 of the Charter of the United Nations provides that "every treaty and
every international agreement entered into by any Member State 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". All treaties
and international agreements registered or filed and recorded with the
Secretariat since 1946 are published in the UNTS. By the terms
"treaty" and "international agreement", referred to in
Article 102 of the Charter, the broadest range of instruments is covered.
Although the General Assembly of the UN has never laid down a precise
definition for both terms and never clarified their mutual relationship,
Art.1 of the General Assembly Regulations to Give Effect to Article 102 of
the Charter of the United Nations provides that the obligation to register
applies to every treaty or international agreement "whatever its form
and descriptive name". In the practice of the Secretariat under Article
102 of the UN Charter, the expressions "treaty" and
"international agreement" embrace a wide variety of instruments,
including unilateral commitments, such as declarations by new Member States
of the UN accepting the obligations of the UN Charter, declarations of
acceptance of the compulsory jurisdiction of the International Court of
Justice under Art.36 (2) of its Statute and certain unilateral declarations
that create binding obligations between the declaring nation and other
nations. The particular designation of an international instrument is thus
not decisive for the obligation incumbent on the Member States to register
it. It must
however not be concluded that the labelling of treaties is haphazard or
capricious. The very name may be suggestive of the objective aimed at, or of
the accepted limitations of action of the parties to the arrangement.
Although the actual intent of the parties can often be derived from the
clauses of the treaty itself or from its preamble, the designated term might
give a general indication of such intent. A particular treaty term might
indicate that the desired objective of the treaty is a higher degree of
cooperation than ordinarily aimed for in such instruments. Other terms might
indicate that the parties sought to regulate only technical matters. Finally,
treaty terminology might be indicative of the relationship of the treaty with
a previously or subsequently concluded agreement. The term
“Parties", which appears in the header of each treaty, in the
publication Multilateral Treaties Deposited with the Secretary-General,
includes both "Contracting States" and "Parties". For
general reference, the term "Contracting States" refers to States
and other entities with treaty-making capacity which have expressed their
consent to be bound by a treaty where the treaty has not yet entered into
force or where it has not entered into force for such States and entities;
the term "Parties" refers to States and other entities with
treaty-making capacity which have expressed their consent to be bound by a
treaty and where the treaty is in force for such States and entities.) The term
"treaty" can be used as a common generic term or as a particular
term which indicates an instrument with certain characteristics. (a) Treaty
as a generic term: The term "treaty" has regularly been used as a
generic term embracing all instruments binding at international law concluded
between international entities, regardless of their formal designation. Both
the 1969 Vienna Convention and the 1986 Vienna Convention confirm this
generic use of the term "treaty". The 1969 Vienna Convention
defines a treaty as "an international agreement concluded between States
in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its
particular designation". The 1986 Vienna Convention extends the
definition of treaties to include international agreements involving
international organizations as parties. In order to speak of a
"treaty" in the generic sense, an instrument has to meet various
criteria. First of all, it has to be a binding instrument, which means that
the contracting parties intended to create legal rights and duties. Secondly,
the instrument must be concluded by states or international organizations
with treaty-making power. Thirdly, it has to be governed by international
law. Finally the engagement has to be in writing. Even before the 1969 Vienna
Convention on the Law of Treaties, the word "treaty" in its generic
sense had been generally reserved for engagements concluded in written form. (b) Treaty
as a specific term: There are no consistent rules when state practice employs
the terms "treaty" as a title for an international instrument.
Usually the term "treaty" is reserved for matters of some gravity
that require more solemn agreements. Their signatures are usually sealed and
they normally require ratification. Typical examples of international
instruments designated as "treaties" are Peace Treaties, Border
Treaties, Delimitation Treaties, Extradition Treaties and Treaties of Friendship,
Commerce and Cooperation. The use of the term "treaty" for
international instruments has considerably declined in the last decades in
favor of other terms. The term
"agreement" can have a generic and a specific meaning. It also has
acquired a special meaning in the law of regional economic integration. (a)
Agreement as a generic term: The 1969 Vienna Convention on the Law of
Treaties employs the term "international agreement" in its broadest
sense. On the one hand, it defines treaties as "international
agreements" with certain characteristics. On the other hand, it employs
the term "international agreements" for instruments, which do not
meet its definition of "treaty". Its Art.3 refers also to
"international agreements not in written form". Although such oral
agreements may be rare, they can have the same binding force as treaties,
depending on the intention of the parties. An example of an oral agreement
might be a promise made by the Minister of Foreign Affairs of one State to
his counterpart of another State. The term "international
agreement" in its generic sense consequently embraces the widest range
of international instruments. (b)
Agreement as a particular term: "Agreements" are usually less
formal and deal with a narrower range of subject-matter than
"treaties". There is a general tendency to apply the term
"agreement" to bilateral or restricted multilateral treaties. It is
employed especially for instruments of a technical or administrative
character, which are signed by the representatives of government departments,
but are not subject to ratification. Typical agreements deal with matters of
economic, cultural, scientific and technical cooperation. Agreements also
frequently deal with financial matters, such as avoidance of double taxation,
investment guarantees or financial assistance. The UN and other international
organizations regularly conclude agreements with the host country to an
international conference or to a session of a representative organ of the
Organization. Especially in international economic law, the term
"agreement" is also used as a title for broad multilateral
agreements (e.g. the commodity agreements). The use of the term
"agreement" slowly developed in the first decades of this century. Nowadays
by far the majority of international instruments are designated as
agreements. (c)
Agreements in regional integration schemes: Regional integration schemes are
based on general framework treaties with constitutional character.
International instruments which amend this framework at a later stage (e.g.
accessions, revisions) are also designated as "treaties".
Instruments that are concluded within the framework of the constitutional
treaty or by the organs of the regional organization are usually referred to as
"agreements", in order to distinguish them from the constitutional
treaty. For example, whereas the Treaty of Rome of 1957 serves as a
quasi-constitution of the European Community, treaties concluded by the EC
with other nations are usually designated as agreements. Also, the Latin
American Integration Association (LAIA) was established by the Treaty of
Montevideo of 1980, but the subregional instruments entered into under its
framework are called agreements. The term
"convention" again can have both a generic and a specific meaning. (a)
Convention as a generic term: Art.38 (1) (a) of the Statute of the
International Court of Justice refers to "international conventions,
whether general or particular" as a source of law, apart from
international customary rules and general principles of international law and
- as a secondary source - judicial decisions and the teachings of the most
highly qualified publicists. This generic use of the term
"convention" embraces all international agreements, in the same way
as does the generic term "treaty". Black letter law is also
regularly referred to as "conventional law", in order to
distinguish it from the other sources of international law, such as customary
law or the general principles of international law. The generic term
"convention" thus is synonymous with the generic term
"treaty". (b)
Convention as a specific term: Whereas in the last century the term
"convention" was regularly employed for bilateral agreements, it
now is generally used for formal multilateral treaties with a broad number of
parties. Conventions are normally open for participation by the international
community as a whole, or by a large number of states. Usually the instruments
negotiated under the auspices of an international organization are entitled
conventions (e.g. Convention on Biological Diversity of 1992, United Nations
Convention on the Law of the Sea of 1982, Vienna Convention on the Law of
Treaties of 1969). The same holds true for instruments adopted by an organ of
an international organization (e.g. the 1951 ILO Convention concerning Equal
Remuneration for Men and Women Workers for Work of Equal Value, adopted by
the International Labour Conference or the 1989 Convention on the Rights of
the Child, adopted by the General Assembly of the UN). The term
"charter" is used for particularly formal and solemn instruments,
such as the constituent treaty of an international organization. The term
itself has an emotive content that goes back to the Magna Carta of 1215.
Well-known recent examples are the Charter of the United Nations of 1945 and
the Charter of the Organization of American States of 1952. The term
"protocol" is used for agreements less formal than those entitled
"treaty" or "convention". The term could be used to cover
the following kinds of instruments: (a) A
Protocol of Signature is an instrument subsidiary to a treaty, and drawn up
by the same parties. Such a Protocol deals with ancillary matters such as the
interpretation of particular clauses of the treaty, those formal clauses not
inserted in the treaty, or the regulation of technical matters. Ratification
of the treaty will normally ipso facto involve ratification of such a
Protocol. (b) An
Optional Protocol to a Treaty is an instrument that establishes additional
rights and obligations to a treaty. It is usually adopted on the same day,
but is of independent character and subject to independent ratification. Such
protocols enable certain parties of the treaty to establish among themselves
a framework of obligations which reach further than the general treaty and to
which not all parties of the general treaty consent, creating a
"two-tier system". The Optional Protocol to the International
Covenant on Civil and Political Rights of 1966 is a well-known example. (c) A
Protocol based on a Framework Treaty is an instrument with specific
substantive obligations that implements the general objectives of a previous
framework or umbrella convention. Such protocols ensure a more simplified and
accelerated treaty-making process and have been used particularly in the
field of international environmental law. An example is the 1987 Montreal
Protocol on Substances that Deplete the Ozone Layer adopted on the basis of
Arts.2 and 8 of the 1985 Vienna Convention for the Protection of the Ozone
Layer. (d) A
Protocol to amend is an instrument that contains provisions that amend one or
various former treaties, such as the Protocol of 1946 amending the
Agreements, Conventions and Protocols on Narcotic Drugs. (e) A
Protocol as a supplementary treaty is an instrument which contains
supplementary provisions to a previous treaty, e.g. the 1967 Protocol
relating to the Status of Refugees to the 1951 Convention relating to the
Status of Refugees. (f) A
Proces-Verbal is an instrument that contains a record of certain
understandings arrived at by the contracting parties. The term "declaration" is used
for various international instruments. However, declarations are not always
legally binding. The term is often deliberately chosen to indicate that the
parties do not intend to create binding obligations but merely want to
declare certain aspirations. An example is the 1992 Rio Declaration.
Declarations can however also be treaties in the generic sense intended to be
binding at international law. It is therefore necessary to establish in each
individual case whether the parties intended to create binding obligations.
Ascertaining the intention of the parties can often be a difficult task. Some
instruments entitled "declarations" were not originally intended to
have binding force, but their provisions may have reflected customary
international law or may have gained binding character as customary law at a
later stage. Such was the case with the 1948 Universal Declaration of Human
Rights. Declarations that are intended to have binding effects could be
classified as follows: (a) A declaration can be a treaty in the
proper sense. A significant example is the Joint Declaration between the
United Kingdom and China on the Question of Hong Kong of 1984. (b) An interpretative declaration is an
instrument that is annexed to a treaty with the goal of interpreting or
explaining the provisions of the latter. (c) A declaration can also be an informal
agreement with respect to a matter of minor importance. (d) A series of unilateral declarations can
constitute binding agreements. A typical example are declarations under the
Optional Clause of the Statute of the International Court of Justice that
create legal bonds between the declarants, although not directly addressed to
each other. Another example is the unilateral Declaration on the Suez Canal
and the arrangements for its operation issued by Egypt in 1957 which was
considered to be an engagement of an international character. A memorandum of understanding is an
international instrument of a less formal kind. It often sets out operational
arrangements under a framework international agreement. It is also used for
the regulation of technical or detailed matters. It is typically in the form
of a single instrument and does not require ratification. They are entered
into either by States or International Organizations. The United Nations
usually concludes memoranda of understanding with Member States in order to
organize its peacekeeping operations or to arrange UN Conferences. The United
Nations also concludes memoranda of understanding on cooperation with other
international organizations. A modus vivendi is an instrument recording
an international agreement of temporary or provisional nature intended to be
replaced by an arrangement of a more permanent and detailed character. It is
usually made in an informal way, and never requires ratification. An "exchange
of notes" is a record of a routine agreement, that has many similarities
with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by
the representative of the other. Under the usual procedure, the accepting
State repeats the text of the offering State to record its assent. The
signatories of the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is frequently resorted
to, either because of its speedy procedure, or, sometimes, to avoid the
process of legislative approval. Glossary of terms relating to
Treaty actions
This
glossary is intended as a general guide and is not presumed to be exhaustive
1. Adoption
"Adoption"
is the formal act by which the form and content of a proposed treaty text are
established. As a general rule, the adoption of the text of a treaty takes
place through the expression of the consent of the states participating in
the treaty-making process. Treaties that are negotiated within an
international organization will usually be adopted by a resolution of a
representative organ of the organization whose membership more or less
corresponds to the potential participation in the treaty in question. A
treaty can also be adopted by an international conference which has
specifically been convened for setting up the treaty, by a vote of two thirds
of the states present and voting, unless, by the same majority, they have
decided to apply a different rule. [Art.9, Vienna
Convention of the Law of Treaties 1969] The instruments of
"acceptance" or "approval" of a treaty have the same
legal effect as ratification and consequently express the consent of a state
to be bound by a treaty. In the practice of certain states acceptance and
approval have been used instead of ratification when, at a national level,
constitutional law does not require the treaty to be ratified by the head of
state. [Arts.2 (1) (b) and
14 (2), Vienna Convention on the Law of Treaties 1969] "Accession"
is the act whereby a state accepts the offer or the opportunity to become a
party to a treaty already negotiated and signed by other states. It has the
same legal effect as ratification. Accession usually occurs after the treaty
has entered into force. The Secretary-General of the United Nations, in his
function as depositary, has also accepted accessions to some conventions
before their entry into force. The conditions under which accession may occur
and the procedure involved depend on the provisions of the treaty. A treaty
might provide for the accession of all other states or for a limited and
defined number of states. In the absence of such a provision, accession can
only occur where the negotiating states were agreed or subsequently agree on
it in the case of the state in question. [Arts.2 (1) (b) and
15, Vienna Convention on the Law of Treaties 1969] "Act of formal
confirmation" is used as an equivalent for the term
"ratification" when an international organization expresses its
consent to be bound to a treaty. [Arts.2 (1) (b bis)
and 14, Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations 1986] The term
"amendment" refers to the formal alteration of treaty provisions
affecting all the parties to the particular agreement. Such alterations must
be effected with the same formalities that attended the original formation of
the treaty. Many multilateral treaties lay down specific requirements to be
satisfied for amendments to be adopted. In the absence of such provisions,
amendments require the consent of all the parties. [Art.40, Vienna
Convention of the Law of Treaties 1969] The term
"authentication" refers to the procedure whereby the text of a
treaty is established as authentic and definitive. Once a treaty has been
authenticated, states cannot unilaterally change its provisions. If states
which negotiated a given treaty do not agree on specific procedures for
authentication, a treaty will usually be authenticated by signature,
signature ad referendum or the initialling by the representatives of those
states. [Art.10, Vienna
Convention on the Law of Treaties 1969] If, after the
authentication of a text, the signatory and contracting states are agreed
that it contains an error, it can be corrected by initialling the corrected
treaty text, by executing or exchanging an instrument containing the
correction or by executing the corrected text of the whole treaty by the same
procedure as in the case of the original text. If there is a depositary, the
depositary must communicate the proposed corrections to all signatory and contracting
states. In the UN practice, the Secretary-General, in his function as
depositary, informs all parties to a treaty of the errors and the proposal to
correct it. If, on the expiry of an appropriate time-limit, no objections are
raised by the signatory and contracting states, the depositary circulates a
proces-verbal of rectification and causes the corrections to be effected in
the authentic text(s). [Art.79, Vienna
Convention on the Law of Treaties 1969] 8. Declarations
Sometimes states make "declarations"
as to their understanding of some matter or as to the interpretation of a
particular provision. Unlike reservations, declarations merely clarify the
state's position and do not purport to exclude or modify the legal effect of
a treaty. Usually, declarations are made at the time of the deposit of the
corresponding instrument or at the time of signature. When the treaty is not subject to
ratification, acceptance or approval, "definitive signature"
establishes the consent of the state to be bound by the treaty. Most
bilateral treaties dealing with more routine and less politicized matters are
brought into force by definitive signature, without recourse to the procedure
of ratification. [Art.12, Vienna Convention on the Law of
Treaties 1969] After a treaty has been concluded, the
written instruments, which provide formal evidence of consent to be bound,
and also reservations and declarations, are placed in the custody of a
depositary. Unless the treaty provides otherwise, the deposit of the
instruments of ratification, acceptance, approval or accession establishes
the consent of a state to be bound by the treaty. For treaties with a small
number of parties, the depositary will usually be the government of the state
on whose territory the treaty was signed. Sometimes various states are chosen
as depositaries. Multilateral treaties usually designate an international
organization or the Secretary-General of the United Nations as depositaries.
The depositary must accept all notifications and documents related to the
treaty, examine whether all formal requirements are met, deposit them,
register the treaty and notify all relevant acts to the parties concerned. [Arts.16, 76 and 77, Vienna Convention on
the Law of Treaties 1969] Typically, the provisions of the treaty
determine the date on which the treaty enters into force. Where the treaty
does not specify a date, there is a presumption that the treaty is intended
to come into force as soon as all the negotiating states have consented to be
bound by the treaty. Bilateral treaties may provide for their entry into
force on a particular date, upon the day of their last signature, upon
exchange of the instruments of ratification or upon the exchange of
notifications. In cases where multilateral treaties are involved, it is
common to provide for a fixed number of states to express their consent for
entry into force. Some treaties provide for additional conditions to be
satisfied, e.g., by specifying that a certain category of states must be
among the consenters. The treaty may also provide for an additional time
period to elapse after the required number of countries have expressed their
consent or the conditions have been satisfied. A treaty enters into force for
those states which gave the required consent. A treaty may also provide that,
upon certain conditions having been met, it shall come into force
provisionally. [Art.24, Vienna Convention on the Law of
Treaties 1969] 12. Exchange of Letters/Notes States may
express their consent to be bound by an "exchange of
letters/notes". The basic characteristic of this procedure is that the
signatures do appear not on one letter or note but on two separate letters or
notes. The agreement therefore lies in the exchange of both letters or notes,
each of the parties having in their possession one letter or note signed by
the representative of the other party. In practice, the second letter or
note, usually the letter or note in response, will typically reproduce the
text of the first. In a bilateral treaty, letters or notes may also be
exchanged to indicate that all necessary domestic procedures have been
completed. [Art.13,
Vienna Convention on the Law of Treaties 1969] "Full
powers" means a document emanating from the competent authority of a
state designating a person or persons to represent the state for negotiating,
adopting, authenticating the text of a treaty, expressing the consent of a
state to be bound by a treaty, or for accomplishing any other act with
respect to that treaty. Heads of State, Heads of Government and Ministers for
Foreign Affairs are considered as representing their state for the purpose of
all acts relating to the conclusion of a treaty and do not need to present full
powers. Heads of diplomatic missions do not need to present full powers for
the purpose of adopting the text of a treaty between the accrediting state
and the state to which they are accredited. Likewise, representatives
accredited by states to an international conference or to an international
organization or one of its organs do not need to present full powers for the
purpose of adopting the text of a treaty in that conference, organization or
organ. [Art.2 (1)
(c) and Art.7 Vienna Convention on the Law of Treaties 1969] The term
"modification" refers to the variation of certain treaty provisions
only as between particular parties of a treaty, while in their relation to
the other parties the original treaty provisions remain applicable. If the
treaty is silent on modifications, they are allowed only if the modifications
do not affect the rights or obligations of the other parties to the treaty
and do not contravene the object and the purpose of the treaty. [Art.41,
Vienna Convention on the Law of Treaties 1969] The term
"notification" refers to a formality through which a state or an
international organization communicates certain facts or events of legal
importance. Notification is increasingly resorted to as a means of expressing
final consent. Instead of opting for the exchange of documents or deposit,
states may be content to notify their consent to the other party or to the
depositary. However, all other acts and instruments relating to the life of a
treaty may also call for notifications. [Arts.16
(c), 78 etc,. Vienna Convention on the Law of Treaties 1969] Any
signatory or contracting state has the option of objecting to a reservation,
inter alia, if, in its opinion, the reservation is incompatible with the
object and purpose 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 states. [Art.20-23,
Vienna Convention on the Law of Treaties 1969] 17.
Provisional Application and Provisional Entry into Force of Treaties 1.
Provisional Application The
growing use of provisional application clauses in treaties is a
consequence of the need felt to give effect to treaty obligations prior to a
state’s formal ratification of/accession to a treaty. The obligations
relating to provisional application are undertaken by a conscious voluntary
act of the state consistent with its domestic legal framework. Provisional
application of a treaty that has entered into force The
provisional application of a treaty that has entered into force may occur
when a state undertakes to give effect to the treaty obligations
provisionally although its domestic procedures for ratification/accession have
not yet been completed. The intention of the state would be to ratify/accede
to the treaty once its domestic legal requirements have been met. Provisional
application may be terminated at any time. In contrast, a state which has
consented to be bound by a treaty through ratification/accession or
definitive signature, is governed by the rules on withdrawal specified in the
treaty concerned (Arts. 54, 56, Vienna Convention on the Law of Treaties
1969). [Art. 25,
Vienna Convention on the Law of Treaties 1969] Provisional
application of a treaty that has not entered into force Provisional
application of a treaty that has not entered into force may occur when a
state notifies that it would give effect to the legal obligations specified
in that treaty provisionally. These legal obligations are undertaken
by a conscious voluntary act of the state consistent with its domestic legal
framework. Provisional application may be terminated at any time. In
contrast, a state which has consented to be bound by a treaty through
ratification/ accession or definitive signature, is governed by the rules on
withdrawal specified in the treaty concerned (Arts. 54, 56, Vienna Convention
on the Law of Treaties 1969). Provisional
application may continue even after the entry into force of the treaty in
relation to a state applying the treaty provisionally until that state has
ratified it. Provisional application terminates if a state notifies the other
states among which the treaty is being applied provisionally of its intention
of not becoming a party to the treaty. [Art. 25
(2), Vienna Convention on the Law of Treaties 1969] 2.
Provisional Entry into Force There are
also an increasing number of treaties which include provisions for provisional
entry into force. Such treaties provide mechanisms for entry into force
provisionally, should the formal criteria for entry into force not be met
within a given period. Provisional entry into force of a treaty may also
occur when a number of parties to a treaty which has not yet entered into
force, decide to apply the treaty as if it had entered into force. Once a
Treaty has entered into force provisionally, it is binding on the parties
which agreed to bring it into force provisionally. The nature
of the legal obligations resulting from provisional entry into force would
appear to be the same as the legal obligations in a treaty that has entered
into force, as any other result would create an uncertain legal situation. It
is the criteria for formal entry into force that have not been met but the
legal standard of the obligations remains. [Art. 25
(1), Vienna Convention on the Law of Treaties 1969] Ratification
defines the international act whereby a state indicates its consent to be
bound to a treaty if the parties intended to show their consent by such an
act. In the case of bilateral treaties, ratification is usually accomplished
by exchanging the requisite instruments, while in the case of multilateral
treaties the usual procedure is for the depositary to collect the
ratifications of all states, keeping all parties informed of the situation.
The institution of ratification grants states the necessary time-frame to
seek the required approval for the treaty on the domestic level and to enact
the necessary legislation to give domestic effect to that treaty. [Arts.2
(1) (b), 14 (1) and 16, Vienna Convention on the Law of Treaties 1969] 19.
Registration and Publication 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". Treaties or
agreements that are not registered cannot be invoked before any organ of the
United Nations. Registration promotes transparency and the availability of
texts of treaties to the public. Article 102 of the Charter and its
predecessor, Article 18 of the Pact of the League of Nations, have their
origin in one of Woodrow Wilson's Fourteen Points in which he outlined his
idea of the League of Nations: "Open covenants of peace, openly arrived
at, after which there shall be no private international understandings of any
kind but diplomacy shall proceed always openly and in the public view". [Art.80,
Vienna Convention on the Law of Treaties 1969] A
reservation is a declaration made by a state by which it purports to exclude
or alter the legal effect of certain provisions of the treaty in their
application to that state. A reservation enables a state to accept a
multilateral treaty as a whole by giving it the possibility not to apply
certain provisions with which it does not want to comply. Reservations can be
made when the treaty is signed, ratified, accepted, approved or acceded to.
Reservations must not be incompatible with the object and the purpose of the
treaty. Furthermore, a treaty might prohibit reservations or only allow for
certain reservations to be made. [Arts.2
(1) (d) and 19-23, Vienna Convention of the Law of Treaties 1969] Revision
has basically the same meaning as amendment. However, some treaties provide
for a revision additional to an amendment (i.e., Article 109 of the Charter
of the United Nations). In that case, the term "revision" refers to
an overriding adoption of the treaty to changed circumstances, whereas the
term "amendment" refers only to a change of singular provisions. A
representative may sign a treaty "ad referendum", i.e., under the
condition that the signature is confirmed by his state. In this case, the
signature becomes definitive once it is confirmed by the responsible organ. [Art.12
(2) (b), Vienna Convention on the Law of Treaties 1969] 23. Signature Subject to Ratification, Acceptance or
Approval
Where the
signature is subject to ratification, acceptance or approval, the signature
does not establish the consent to be bound. However, it is a means of
authentication and expresses the willingness of the signatory state to
continue the treaty-making process. The signature qualifies the signatory
state to proceed to ratification, acceptance or approval. It also creates an
obligation to refrain, in good faith, from acts that would defeat the object
and the purpose of the treaty. [Arts.10
and 18, Vienna Convention on the Law of Treaties 1969] |
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