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Strengthening the International Rule of Law: Contribution of the Treaty Section of the Office of Legal Affairs By Palitha T.B. Kohona An Overview.

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Presentation on theme: "Strengthening the International Rule of Law: Contribution of the Treaty Section of the Office of Legal Affairs By Palitha T.B. Kohona An Overview."— Presentation transcript:

1 Strengthening the International Rule of Law: Contribution of the Treaty Section of the Office of Legal Affairs By Palitha T.B. Kohona An Overview

2 The Secretary-General (S-G) observed in 2000: The Secretary-General (S-G) observed in 2000: "The expansion of the rule of law in international relations has been the foundation of much of the political, social and economic progress achieved in recent years. Undoubtedly, it will facilitate further progress in the new millennium.”"The expansion of the rule of law in international relations has been the foundation of much of the political, social and economic progress achieved in recent years. Undoubtedly, it will facilitate further progress in the new millennium.” "The new millennium is an appropriate occasion to reaffirm the primary objectives of our Organization and focus on them anew. Establishing the rule of law in international affairs is a central priority.”"The new millennium is an appropriate occasion to reaffirm the primary objectives of our Organization and focus on them anew. Establishing the rule of law in international affairs is a central priority.” In the next 30 or 40 minutes, I will explore the contribution that the Treaty Section has made to realize this objective. In the next 30 or 40 minutes, I will explore the contribution that the Treaty Section has made to realize this objective. What is the contribution of the Treaty Section? What is the contribution of the Treaty Section? The S-G’s Thoughts

3 Overview of Treaty Section Mandates To strengthen the international rule of law by: To strengthen the international rule of law by: 1.Registering and publishing treaties (Article 102 of the UN Charter); The Secretariat is responsible for registering all treaties under Art. 102 of the Charter. The Secretariat is responsible for registering all treaties under Art. 102 of the Charter. Publishing treaties. Publishing treaties. The Treaty Section discharges this mandate. The Treaty Section discharges this mandate. 2.Discharging the S-G’s depositary functions relating to over 500 multilateral treaties; The S-G is the depository of over 500 multilateral Treaties. The S-G is the depository of over 500 multilateral Treaties. The Treaty Section discharges his responsibilities. The Treaty Section discharges his responsibilities. These treaties cover the entire spectrum of human interaction. These treaties cover the entire spectrum of human interaction. Human Rights, Humanitarian Affairs, Trade, the Environment, Law of the Sea, Space, Disarmament, Organized Crime, Terrorism, Drugs, etc. Human Rights, Humanitarian Affairs, Trade, the Environment, Law of the Sea, Space, Disarmament, Organized Crime, Terrorism, Drugs, etc. 3.Providing legal advice and technical assistance to States. Advice and assistance is provided to the UN Secretariat, members of the UN family, and Treaty bodies. Advice and assistance is provided to the UN Secretariat, members of the UN family, and Treaty bodies. Also to Member States and Capitals. Also to Member States and Capitals.

4 Registration of Treaties 1.A little bit about registration:  Art. 102 requires all Member States to register their treaties and agreements;  This is a mandatory obligation;  Section receive, analyze, process, register, and record treaties (Article 102 of the UN Charter);  Section publishes the Monthly Statement of Treaties, also on the Internet; and 2.Section registers approximately 4000 treaties and related actions annually.

5 Publication All registered treaties must be published; All registered treaties must be published; Except those falling under Art.12 of the regulations Except those falling under Art.12 of the regulations Registered treaties are published in United Nations Treaty Series (UNTS); Registered treaties are published in United Nations Treaty Series (UNTS); Publishes the Cumulative Index to UNTS; Publishes the Cumulative Index to UNTS; All publications available on the Internet (untreaty.un.org). All publications available on the Internet (untreaty.un.org).

6 Depositary Functions Discharge the functions of the S-G as depositary of over 500 multilateral treaties; Discharge the functions of the S-G as depositary of over 500 multilateral treaties; Information on all treaty actions are communicated to States by depositary notifications (CNs) in hard copy and by ; Information on all treaty actions are communicated to States by depositary notifications (CNs) in hard copy and by ; Publish annually Multilateral Treaties Deposited with the Secretary-General in hard copy, also available on the Internet and on CD-ROM. Publish annually Multilateral Treaties Deposited with the Secretary-General in hard copy, also available on the Internet and on CD-ROM. Contains information on signatures, ratifications, accession, reservations, declarations etc.Contains information on signatures, ratifications, accession, reservations, declarations etc. This is the most comprehensive document of this kind.This is the most comprehensive document of this kind. Internet version updated daily.Internet version updated daily.

7 Legal and Technical Assistance Provide legal and technical advice and assistance on the registration function, depositary practice and treaty law; Provide legal and technical advice and assistance on the registration function, depositary practice and treaty law; to Member States, members of the UN family, treaty bodies etc.to Member States, members of the UN family, treaty bodies etc. Provide technical assistance through training seminars and publications Provide technical assistance through training seminars and publications Treaty Handbook, Handbook of Final Clauses, Summary of Practice, Legal Technical Assistance website, etc.Treaty Handbook, Handbook of Final Clauses, Summary of Practice, Legal Technical Assistance website, etc. All publications are available on the Internet.All publications are available on the Internet.

8 Registration Mandate Why are Treaties registered and published? Why are Treaties registered and published? Article 102 of the UN CharterArticle 102 of the UN Charter All treaties concluded by Member States are required to be submitted for registration. All treaties concluded by Member States are required to be submitted for registration. The Secretariat is obliged to publish them. The Secretariat is obliged to publish them. Except treaties falling under Art.12 of the Regulations. Except treaties falling under Art.12 of the Regulations. – this provides a discretion not to publish certain obligations of treaties. – mostly technical agreements, e.g., World Bank agreements, IMF Agreements, Bilateral Technical Assistance Agreements, Agreements published elsewhere Regulations to Give Effect to Article 102 elaborate on the publication functionRegulations to Give Effect to Article 102 elaborate on the publication function Last comprehensively revised in Last comprehensively revised in See UNTS vol. 859/860, p. viii.See UNTS vol. 859/860, p. viii. Indirectly modified by a General Assembly Resolution in Indirectly modified by a General Assembly Resolution in Guides the registration and publication processes. Guides the registration and publication processes.

9 Reflects the vision of President Woodrow Wilson: Reflects the vision of President Woodrow Wilson: Secret diplomacy was the main cause of war;Secret diplomacy was the main cause of war; He sought to eliminate secret diplomacy to advance the cause of peace.He sought to eliminate secret diplomacy to advance the cause of peace. League of Nations Covenant (Article 18) League of Nations Covenant (Article 18) No treaty would be binding unless registered;No treaty would be binding unless registered; Article 102 in the Charter continues the tradition of the Covenant - but the sanction for non-registration is not obvious. Article 102 in the Charter continues the tradition of the Covenant - but the sanction for non-registration is not obvious. Why Register?

10 1.What is a Treaty that should be registered? 2.Broad definition adopted of the term "treaties or international agreements". 3.This broad definition is a key reason for the high number of registrations. – An instrument between two entities capable of concluding treaties. – It should be governed by international law. – Enforceable at international law. An agreement between two companies is not registerable. An agreement between two companies is not registerable. Some entities are not recognized as States by the UN (e.g., Taiwan). Some entities are not recognized as States by the UN (e.g., Taiwan). Characterization adopted by negotiating parties is not the determining factor.Characterization adopted by negotiating parties is not the determining factor. The instrument itself could be called a treaty, convention, agreement, MOU, exchange of notes, etc.The instrument itself could be called a treaty, convention, agreement, MOU, exchange of notes, etc. Secretariat examines each instrument submitted to ensure it meets the essential criteria for registration.Secretariat examines each instrument submitted to ensure it meets the essential criteria for registration. All subsequent actions are also required to be registered.All subsequent actions are also required to be registered. Extensions, amendments, denunciations, etc. Extensions, amendments, denunciations, etc. Includes bilaterals and multilaterals.Includes bilaterals and multilaterals. What is a “Treaty”

11 Increase in Registrations and Actions Submitted for Registration There are a number of reasons for this: New Countries which have joined the international community recently have been enthusiastic about concluding treaties New Countries which have joined the international community recently have been enthusiastic about concluding treaties In 1945, there were 51 States- today, 191. In 1945, there were 51 States- today, 191. Number of countries in the international community has increased: Number of countries in the international community has increased:  Decolonization process in the 50s and the 60s.  Countries which broke away from the former Soviet Union / Eastern bloc countries (post-1989), former Yugoslavia, etc. Increase in international law-making in the last 15 years Increase in international law-making in the last 15 years E.g.: multilateral conventions on the environment, human rights, disarmament, humanitarian issues, etc.E.g.: multilateral conventions on the environment, human rights, disarmament, humanitarian issues, etc. Resulted in the need to registermultilateral treaty actions related to these treaties. Resulted in the need to register multilateral treaty actions related to these treaties. Certain special international developments Certain special international developments Return of Hong Kong andMacao to China, readmission of Yugoslavia to the UN. Return of Hong Kong and Macao to China, readmission of Yugoslavia to the UN. Increasing awareness of the need to register treaties Increasing awareness of the need to register treaties The Legal Counsel circulates a note at the beginning of each year. The Legal Counsel circulates a note at the beginning of each year.

12 According to Article 102: According to Article 102: A non-registered treaty cannot be invoked before a UN body, including the International Court of Justice (ICJ);A non-registered treaty cannot be invoked before a UN body, including the International Court of Justice (ICJ); This provision remains to be judicially analyzed;This provision remains to be judicially analyzed; The ICJ, for example, has had non-registered treaties before it;The ICJ, for example, has had non-registered treaties before it; However, it appears not to have based a decision on a non-registered treaty.However, it appears not to have based a decision on a non-registered treaty. However, not all Member States register their treaties: However, not all Member States register their treaties: Mostly, a question of resources, especially in developing countries;Mostly, a question of resources, especially in developing countries; Not an absence of political will; Not an absence of political will; Also defense and security agreements. Also defense and security agreements. Is there a sanction for not registering?

13 Pursuant to Article 102, the United Nations Treaty Series (UNTS) has been published continuously since 1946: Pursuant to Article 102, the United Nations Treaty Series (UNTS) has been published continuously since 1946: Like the League of Nations Treaty Series;Like the League of Nations Treaty Series; It contains over 50,000 treaties, and a similar number of related actions;It contains over 50,000 treaties, and a similar number of related actions; There are over 2,200 printed volumes, in 142+ languages, and over 1,000,000 pages.There are over 2,200 printed volumes, in 142+ languages, and over 1,000,000 pages. There are only two publications mandated by the Charter; There are only two publications mandated by the Charter; One is the S-G’s annual report;One is the S-G’s annual report; The other is the UNTS;The other is the UNTS; All published volumes are available on the Internet; All published volumes are available on the Internet;  Internet version gets 1.7 million hits per month. Publication Statistics

14 Publication on the Internet Volumes of the UNTS Volumes of the UNTS In hard copy, over 2200 total volumes have been published; andIn hard copy, over 2200 total volumes have been published; and On the Treaty Section website, the full text of treaties in over 2200 volumes.On the Treaty Section website, the full text of treaties in over 2200 volumes. Monthly Statements are also available on the website within a month after registration month; Monthly Statements are also available on the website within a month after registration month; include treaty reference information such as the name of the treaty, the parties, the entry into force information, etc.include treaty reference information such as the name of the treaty, the parties, the entry into force information, etc. The League of Nations Treaty Series is now available on the Internet. The League of Nations Treaty Series is now available on the Internet. All Depositary Notifications are available on the UNTC. All Depositary Notifications are available on the UNTC. Fee-based service for certain categories of users: Fee-based service for certain categories of users: However, free for Missions, capitals, and members of the UN family, NGOs and developing countries.However, free for Missions, capitals, and members of the UN family, NGOs and developing countries.

15 Encourage the dissemination of international law: Encourage the dissemination of international law: Treaties are the main source of international law;Treaties are the main source of international law; They provide the key foundation for the development of the international rule of law;They provide the key foundation for the development of the international rule of law; They serve as precedents and contribute to the development of legal principles.They serve as precedents and contribute to the development of legal principles. You do not need to invent the wheel when negotiating a new treaty.You do not need to invent the wheel when negotiating a new treaty. Can use an existing precedent. Can use an existing precedent. Legal principles develop when the same concept goes repeatedly into different treaties. Legal principles develop when the same concept goes repeatedly into different treaties. E.g. the concept of fair, equitable and prompt compensation for expropriated property. E.g. the concept of fair, equitable and prompt compensation for expropriated property.  Repeatedly used in bilateral investment protection agreements. Objectives of Publication

16 Remove mystique surrounding treaties: Remove mystique surrounding treaties: Treaties used to be concluded in distant capitals with pomp and pageantry;Treaties used to be concluded in distant capitals with pomp and pageantry; Now accessible to a wider audience;Now accessible to a wider audience; Particularly as a result of publishing on the Internet;Particularly as a result of publishing on the Internet; Wider access important, given the impact on the lives of ordinary people :Wider access important, given the impact on the lives of ordinary people : E.g., environmental treaties, human rights treaties, ILO conventions.E.g., environmental treaties, human rights treaties, ILO conventions. May be seen also as an important step in the democratisation of treaty-making.May be seen also as an important step in the democratisation of treaty-making. Increase transparency – a key objective of Article 102.Increase transparency – a key objective of Article 102.

17 Objectives of Publication Objectives of Publication Participation of civil society: Participation of civil society: The increase in treaty-making, especially multilateral treaties, has in turn encouraged non-state entities such as NGOs and individuals to play a more proactive role in the negotiation of treaties and implementation of treaty obligations;The increase in treaty-making, especially multilateral treaties, has in turn encouraged non-state entities such as NGOs and individuals to play a more proactive role in the negotiation of treaties and implementation of treaty obligations; - wider access is a great benefit to them. Assists in the further democratisation of international law-making processes.Assists in the further democratisation of international law-making processes.

18 Backlog in publication of the UNTS reduced from 11 years in 1997 to less than 11 months today; Backlog in publication of the UNTS reduced from 11 years in 1997 to less than 11 months today; Through a combination of managerial and technological innovations.Through a combination of managerial and technological innovations. In 1996, the GA endorsed the programme of work through a resolution on the “ Electronic Treaty Database ”.In 1996, the GA endorsed the programme of work through a resolution on the “ Electronic Treaty Database ”. Requested “… the S-G to provide all necessary assistance, including translation services, to implement the plan to eliminate the historical backlog ”. Requested “… the S-G to provide all necessary assistance, including translation services, to implement the plan to eliminate the historical backlog ”. Treaty Section confronted a range of challenges, including securing financial resources.Treaty Section confronted a range of challenges, including securing financial resources. Training in technology.Training in technology. Working in teams.Working in teams. Taking responsibility for decisions.Taking responsibility for decisions. Reduction of reviews.Reduction of reviews. Insistence that service providers stick to contractual terms.Insistence that service providers stick to contractual terms. Eliminating redundant steps.Eliminating redundant steps. Thoroughly computerized the Section.Thoroughly computerized the Section.  Training in modern technology. Backlog Drastically Reduced

19 S-G is designated as Depositary of over 500 multilateral treaties; S-G is designated as Depositary of over 500 multilateral treaties; S-G not obligated to accept role but usually will for: S-G not obligated to accept role but usually will for: Open multilateral treaties of a universal nature;Open multilateral treaties of a universal nature; Treaties adopted by the General Assembly;Treaties adopted by the General Assembly; Treaties concluded by a conference convened by a UN organ;Treaties concluded by a conference convened by a UN organ; Regional treaties drawn up within the framework of the regional commissions;Regional treaties drawn up within the framework of the regional commissions; Exceptions: S-G will serve as depositary as he deems appropriate e.g. Agreement on Succession Issues.Exceptions: S-G will serve as depositary as he deems appropriate e.g. Agreement on Succession Issues. Depositary Mandate S-G’s Role as Depositary

20 The S-G is responsible for ensuring the proper execution of all treaty actions relating to a treaty and is guided by: The S-G is responsible for ensuring the proper execution of all treaty actions relating to a treaty and is guided by: Article 77 of the VCLT 1969;Article 77 of the VCLT 1969; - It is not necessary to list depositary functions in a treaty- they are listed in Art.77; - This is why he insists on clearing final clauses in all Treaties. Provisions of the relevant treaty (final clauses);Provisions of the relevant treaty (final clauses); His practice which pre-dates the VCLT and has evolved since (Summary of Practice);His practice which pre-dates the VCLT and has evolved since (Summary of Practice); Resolutions of the GA and other UN organs;Resolutions of the GA and other UN organs; Customary international law.Customary international law. The S-G provides advice and assistance relating to the conclusion of treaties, particularly their final clauses; The S-G provides advice and assistance relating to the conclusion of treaties, particularly their final clauses; The S-G also provides interpretations of final clauses. The S-G also provides interpretations of final clauses. The S-G’s practice has evolved sometimes in ways inconsistent with the VCLT The S-G’s practice has evolved sometimes in ways inconsistent with the VCLT  E.g. Accepting reservations after the ratification, accession, etc. S-G’s Role as Depositary

21 Multilateral Treaties Deposited with the S-G is an annual publication of over 1,000 printed pages: Multilateral Treaties Deposited with the S-G is an annual publication of over 1,000 printed pages: The most comprehensive collection in the world;The most comprehensive collection in the world; Details the status of the multilateral treaties deposited with the S-G:Details the status of the multilateral treaties deposited with the S-G: Signatures, ratifications, declarations, reservations, etc. Signatures, ratifications, declarations, reservations, etc. Electronic version updated daily.Electronic version updated daily. Depositary Notifications (CNs): Depositary Notifications (CNs): Sent daily in hard copy and by .Sent daily in hard copy and by . Both available on the Internet at Both available on the Internet at Depositary Publications

22 In 2000, the Millennium Year, a campaign was launched to encourage wider participation in the multilateral treaties deposited with the S-G: In 2000, the Millennium Year, a campaign was launched to encourage wider participation in the multilateral treaties deposited with the S-G: A key awareness-raising effort;A key awareness-raising effort; Many treaties negotiated with meticulous care and adopted with great enthusiasm had, after many years, not achieved universal participation;Many treaties negotiated with meticulous care and adopted with great enthusiasm had, after many years, not achieved universal participation; Some, not even in force.Some, not even in force. The Millennium Summit Treaty Event: The Millennium Summit Treaty Event: Very successful treaty actions by 84 States, mostly by heads of State and Government.Very successful treaty actions by 84 States, mostly by heads of State and Government. S-G decided to hold such an event each year.S-G decided to hold such an event each year. Encouraging Wider Participation

23 Since then: Focus Rights of Women and Children; Focus Rights of Women and Children; Treaty Event on Treaties relating to Terrorism - in response to the terrorist attacks on the US, a treaty event was held in November 2001; Treaty Event on Treaties relating to Terrorism - in response to the terrorist attacks on the US, a treaty event was held in November 2001; Focus Sustainable Development was organised to coincide with the WSSD; Focus Sustainable Development was organised to coincide with the WSSD; Focus Treaties Against Transnational Organized Crime and Terrorism; Focus Treaties Against Transnational Organized Crime and Terrorism; Focus 2004 – Protection of Civilians; Focus 2004 – Protection of Civilians; Focus 2005 – Responding to Global Challenges – United Nations at 60. Focus 2005 – Responding to Global Challenges – United Nations at 60. Encouraging Wider Participation

24 Assistance provided to countries to become party to treaties (signature, ratification/accession, etc.). Assistance provided to countries to become party to treaties (signature, ratification/accession, etc.). TS published Treaty Handbook to assist States in registering treaties and becoming party ( available in all UN official languages and on the Internet); TS published Treaty Handbook to assist States in registering treaties and becoming party ( available in all UN official languages and on the Internet); Handbook on Final Clauses is also available; Handbook on Final Clauses is also available; These Handbooks are supplemented with training sessions for legal officers assisting governments and others: These Handbooks are supplemented with training sessions for legal officers assisting governments and others: 6 training sessions have been conducted at UN HQ;6 training sessions have been conducted at UN HQ; 4 regional sessions (Laos, ASEAN, CARICOM, Vietnam- Now Geneva);4 regional sessions (Laos, ASEAN, CARICOM, Vietnam- Now Geneva); Multiple requests for training (The main problem, however, is funding).Multiple requests for training (The main problem, however, is funding). Training

25 Copyright 2004 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. Copyright 2004 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. Copyright Notice


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