1. 1 Regional Course in International Law The Law of Treaties (Part One) Santiago Villalpando Addis Ababa, 10 April 2014

2. Introduction  Topics  Methodology  Disclaimer 2

3. The law of treaties and the law of international responsibility 3

4. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 38, para. 47 “… those two branches of international law obviously have a scope that is distinct. A determination of whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the responsibility of the State which proceeded to it, is to be made under the law of state responsibility.” 4

5. Introduction to the law of treaties 5

6. In search of a domestic law analogy Is a treaty akin to a “contract” or a “law”? 6

7. The law of treaties and international law making Treaty law as part of the theory of sources of international law  What is a source? How are sources identified and regulated?  In domestic law  In international law 7

8. Article 38 of the Statute of the International Court of Justice 1.The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2.This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. 8

9. The codification of the law of treaties Traditionally, the law of treaties was governed by rules of customary international law. The United Nations has codified the law of treaties: 1969 Vienna Convention on the Law of Treaties 1969 Vienna Convention on the Law of Treaties 1978 Convention on Succession of States in Respect of Treaties 1978 Convention on Succession of States in Respect of Treaties 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (not in force) 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (not in force) Ongoing codification of the law of treaties: Reservations to treaties (Guide to Practice) Reservations to treaties (Guide to Practice) Effects of armed conflicts on treaties Effects of armed conflicts on treaties Subsequent agreements and subsequent practice in relation to the interpretation of treaties Subsequent agreements and subsequent practice in relation to the interpretation of treaties Provisional application of treaties Provisional application of treaties 9

10. 10 An overview of the 1969 Vienna Convention on the Law of Treaties Part I:Introduction, including scope of application of the Convention and definitions Part II:Conclusion and entry into force of treaties, including reservations Part III:Observance, application and interpretation of treaties Part IV:Amendment and modification of treaties Part V:Invalidity, termination and suspension of operation of treaties Part VI:Miscellaneous provisions Part VII:Depositaries, notifications, corrections and registration Part VIII:Final provisions

11. 11 Strengths of the Vienna Convention The Vienna Convention governs the law of all treaties: Whatever their name Whatever their name Whatever their subject-matter Whatever their subject-matter Both bilateral or multilateral treaties Both bilateral or multilateral treaties Whatever the form in which they were concluded Whatever the form in which they were concluded The Vienna Convention governs all aspects of treaty law Birth of the treaty (conclusion, entry into force, etc.) Birth of the treaty (conclusion, entry into force, etc.) Life of the treaty (interpretation, application, amendments, etc.) Life of the treaty (interpretation, application, amendments, etc.) Death of the treaty (invalidity, termination, suspension) Death of the treaty (invalidity, termination, suspension) The Vienna Convention strikes a balance in the regulation of treaties New and classic forms of treaty-making New and classic forms of treaty-making Stability and flexibility of treaty relations Stability and flexibility of treaty relations

12. In praise of of the Vienna Convention The Vienna Convention is the key reference to settle issues arising in treaty law The Vienna Convention consolidates the key principles of the law of treaties:  The principle of consent of States parties  The principle “pacta sunt servanda” The Vienna Convention is a set of disposable rules  Its provisions are subject to the contrary will of the parties, as expressed in the treaty [See, however, art. 53 and 64] 12

13. Contextualizing the Vienna Convention The Vienna Convention:  Is a product of a specific historical moment  Is a treaty that governs … the law of treaties!  Is a successful codification, but not a universally-ratified treaty (113 Parties)  Is the most reliable reference on treaty law, but does not settle all the issues arising in this area 13

14. The Treaty Section of the United Nations Office of Legal Affairs 14

15. 15 What does the Treaty Section do?  Registration and publication of treaties under Article 102 of the Charter of the United Nations  Discharge of the depositary functions of the Secretary- General under more than 550 multilateral conventions

16. 16 Registration and publication of treaties Article 102 of the Charter 1. 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. 2.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.

17. 17 Historical background of registration Fourteen points by President Woodrow Wilson (1918) I.Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.

18. Historical background of registration Article 102 of the Charter of the United Nations 1.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. 1.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. 2.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. 2.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. Article 18 of the Covenant of the League of Nations Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered. 18

19. Applicable law on registration  Article 102 of the Charter of the United Nations  Regulations to give effect to Article 102 of the Charter of the United Nations (General Assembly Resolution 97 (I), as modified by resolutions 364 B (IV), 482 (V) and 33/141 A)  Resolution on Registration of Treaties and International Agreements (General Assembly Resolution 23 (I)) 19

20. Registration under the Charter 1.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. 1.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. 2.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. 2.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.  “Every treaty or international agreement, whatever its form and descriptive name”  Multilateral and bilateral agreements (incl., MOUs, exchanges of letters, etc.)  “Any subsequent action which effects a change in the parties thereto, or the terms, scope or application thereof, shall also be registered with the Secretariat” 20

21. Registration under the Charter 1.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. 1.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. 2.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. 2.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. Registration  Treaties to which a Member State is a party Registration ex officio (by the UN or specialized agencies)  Treaties to which the UN is a party  When the UN has been authorized to effect registration  When the SG is depositary. 21

22. Registration under the Charter Filing and recording Treaties entered into by the United Nations or by one or more specialized agencies  Treaties transmitted by a party which is not a UN Member State 22

23. Registration under the Charter 1.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. 1.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. 2.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. 2.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. Filing and recording:  Treaties transmitted by Member States and non- Member States which entered into force before the Charter but were not included in the LoN Treaty Series 23

24. Registration under the Charter 1.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. 1.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. 2.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. 2.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.  “Registration shall not take place until the treaty or international agreement has come into force between two or more of the parties thereto.”  Secretariat’s practice: All Member States are encouraged to submit their treaties for registration – including non-recent ones 24

25. Registration under the Charter 1.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. 1.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. 2.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. 2.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.  Monthly Statement of the Treaties and International Agreements  United Nations Treaty Series  Publication online (United Nations Treaty Collection: treaties.un.org) [Not published: assistance and cooperation agreements, agreements relating to the org. of conferences, etc.)] 25

26. Registration under the Charter 1.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. 1.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. 2.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. 2.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.  The treaty is not invalid.  Registration does not imply a judgment by the Secretariat on the nature of the instrument  Registration does not change the status of the instrument … but  The treaty may not be invoked before any organ of the United Nations (incl., GA, SC, ICJ). 26

27. 27 Summary on registration Member States have an obligation to register treaties. What should be registered?  Every treaty or international agreement  Any subsequent action which effects a change in the parties or the terms, scope or application of the treaty Who should register?  Member States  Depositaries  International organizations What is the consequence of non registration?  The treaty may not be invoked before any organ of the UN.

28. 28 Requirements for registration Certified true copy of treaty in all authentic texts Certified true copy of treaty in all authentic texts Certifying statement, including: title of the treaty; place and date of conclusion, date and method of entry into force, authentic languages. Certifying statement, including: title of the treaty; place and date of conclusion, date and method of entry into force, authentic languages. All attachments (annexes, minutes, procès-verbaux, etc.) constituting an integral part of the treaty All attachments (annexes, minutes, procès-verbaux, etc.) constituting an integral part of the treaty Two additional copies or one electronic copy (CD- Rom) Two additional copies or one electronic copy (CD- Rom) Translations into English and/or French (if available) Translations into English and/or French (if available)

29. 29 Certificate of registration

30. Registration functions ≠ Depositary functions Registration  Art. 102 UN Charter  For all treaties or agreements  Copies of treaties and subsequent actions Depositary  Multilateral conventions (Art. 98 UN Charter)  For multilateral treaties only  Original instruments 30

31. 31 The depositary functions of the Secretary-General  The Secretary-General is depositary for more than 560 multilateral conventions. These include: Multilateral treaties of worldwide interest adopted by the General Assembly or concluded by plenipotentiary conferences convened by the United Nations Multilateral treaties of worldwide interest adopted by the General Assembly or concluded by plenipotentiary conferences convened by the United Nations Regional treaties adopted within the framework of the regional commissions of the United Nations Regional treaties adopted within the framework of the regional commissions of the United Nations  The Treaty Section discharges all the functions of the Secretary-General as depositary of these conventions.

32. 32 Main depositary functions The Depositary : Keeps custody of the original of the treaty and of full powers Prepares certified copiesReceives and keeps custody of signatures and any instrumentsExamines whether signatures and instruments are in due and proper form Informs States of any actions relating to the treaty Informs States of the entry into force of the treaty Registers the treaty with the Secretariat of the United Nations;Performs other functions specified in the treaty

33. 33 What can the Section do for you?  Informal advice relating to registration and depositary matters  Technical assistance relating to treaty law, particularly in the preparation of final clauses  Regional seminars in treaty law and practice  Annual treaty event  Publications  Website (http://treaties.un.org)

34. 34 Publications of the Treaty Section Recurrent publications:  United Nations Treaty Series  Monthly Statements of Treaties and International Agreements Other publications:  Summary of practice of the Secretary-General as depositary of multilateral treaties  Treaty Handbook  Handbook of Final Clauses  Treaty Event Focus books

35. 35 The United Nations Treaty Collection http://treaties.un.org/ Content:  Status of multilateral treaties deposited with the Secretary- General  Depositary notifications  United Nations Treaty Series and advance copies of treaties deposited with the Secretariat  Full content of all publications of the Treaty Section  General information relating to activities of the Treaty Section, including regional seminars and treaty events  Information about treaty actions, including pictures of ceremonies Services:  Automated subscription services  Online queries

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