Registration of Treaties under Article 102 of the Charter of the United Nations Seminar on the undertaking of Treaty Actions for Treaties November 11-12 2009 UN Headquarters Muriel Djella Ogandaga Arturo Requesens Associate Legal Officers Treaty Section

Agenda Article 102 of the UN Charter - Mandate Definition of Treaty and Treaty-making Capacity Registration procedures for Member States Publication of Treaties and Subsequent Actions Legal Technical Assistance offered by OLA (including internet databases)

United Nations Charter Article 102 Paragraph 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. Paragraph 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 102: Origins and Policy Objective To avoid secret diplomacy (W. Wilson) 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.

Implications of Article 102 Each Member State: must register all international agreements/treaties. United Nations Secretariat: must publish all agreements registered. This function is performed at UN HQ by the Office of Legal Affairs, Treaty Section.

Article 102(2): Sanctions and Penalties No party to a non-registered agreement may invoke that treaty or agreement before any organ of the United Nations (e.g., the International Court of Justice). The Article 102 sanction seems to apply only to the parties of an unregistered agreement.  Third parties have invoked unregistered treaties; parties in the middle of an ICJ proceeding have registered an agreement used in a defense and the ICJ allowed.

When must a treaty be registered? Article 102(1): “as soon as possible” Secretariat’s practice: the OLA Treaty Section encourages all Member States to submit their treaties for registration – including those from any time period (no deadline for registration). This furthers Article 102’s objective to encourage greater transparency and OLA’s mandate to promote the rule of law Also results in a greater number of treaties in the UN Treaty Series, and therefore a better resource for Member States of the UN

Important Note Registration does not imply a judgment by Secretariat: nature of the instrument, status of a party, or any similar question Secretariat’s action/inaction does not confer or take away: status of a treaty/ international agreement status of a party Agreement/entity MUST possess status at international law.

Summary Member State: must submit for registration all international agreements/treaties Secretariat: must publish registered agreements

Definition of “Treaty” or “International Agreement” UN Charter: no definition Regulations to give effect to Article 102 (GA 1946) Article 1:“whatever its form and descriptive name” Vienna Convention, 1969, Article 2(1)(a) : “treaty” means 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.

“Treaty” or “International Agreement” Article 102 “Treaty” or “International Agreement” Treaty Convention Exchange of notes/letters Protocol MOU Minutes Unilateral Declaration

Treaty characteristics Registrable At least 2 Parties with treaty-making capacity Intention to create legal obligations at international law Binding at international law Entry into force date/method Old/Terminated agreements included Not registrable Mere political declarations Agreements governed by domestic law Not in force; no simple signature

Treaty-Making Capacity At least two parties - Sovereign states - Intergovernmental organizations No capacity: Non-state entities - Secretariat is guided by GA/SC resolutions

Summary Treaty/International Agreement whatever its form and descriptive name Parties treaty-making capacity on international plane intention to create obligations at international law

Types of Subsequent Actions to Treaties registered by the UN Secretariat Multilateral Ratification/Accession Termination Extension to territories Denunciation Amendment Bilateral Change in parties Modification of terms/Termination Change in scope of application

Filing and Recording Agreements not subject to registration  are voluntarily filed and recorded (but are still published by the UN Secretariat). Includes agreements between: United Nations and Specialized Agencies United Nations and non-member states Specialized Agencies and non-member states 2 or more Specialized Agencies Specialized Agencies and International Governmental Organizations

Requirements for Member States for the Registration of Treaties Regulations to give effect to Article 102 » uniform guidelines Treaty/international agreement (Article 102) Must have already entered into force Accompanied by a Certifying Statement: “text is a true and complete copy thereof and includes all reservations/declarations made by the parties thereto” Full title Date and place of conclusion Date and method of Entry into Force All authentic languages

Requirements Submission must be complete - e.g., authentic texts, protocols, annexes, maps Copy of submission must be legible * Any parent agreement or related agreements that are incorporated by reference must already be registered Date of effect of registration = date of receipt by Secretariat of the complete submission

Requirements for Publication Electronic copy (G.A. Res. A/RES/51/158 of 10 Jan. 97) Diskette or CD-ROM Courtesy translations into any of the six official languages (preferably English/French)

Communication by Secretariat If successful:  Submitter receives a certificate of registration

Communication by Secretariat (Continued) If there is a problem with the registration:  Submitter is most commonly requested to submit missing information or clarify: Authentic language versions Entry into force information Missing annexes, protocols, etc. Translations and electronic copy

Summary Documentation complete; meets definition of “international agreement” under Article 102 and its Regulations Certifying statement correct and matches the Agreement itself Translations/electronic copy submitted Agreement registered and published

Publication Mandate OLA Treaty Section Monthly Statement Publication of Treaties in the United Nations Treaty Series http://treaties.un.org Publication Mandate: - Article 12 of the Regulations to give effect to Article 102 (see Treaty Handbook p. 32) - Modified by A/153 of 15 December 1997

United Nations Treaty Series Limited Publication Policy Exceptions to publication in extenso: Assistance / co-operation agreements of limited scope: financial, commercial, administrative or technical matters e.g. project agreements, World Bank bilateral financial agreements Agreements relating to the organization of conferences, seminars or meetings Agreements that are to be published elsewhere by UN Secretariat or specialized or related agency e.g. IAEA agreements

United Nations Treaty Series Limited Publication Policy Exceptions to publication in extenso: Lengthy lists of products attached to trade agreements And: Agreements of the European Community/Union are published only in English and French Source: Article 12(2) of the GA regulations to give effect to Article 102 of the UN Charter

United Nations Treaty Series Published in a single series beginning in 1946 (with the SG’s annual report, UNTS is 1 of only 2 publications mandated in the UN Charter) All integral elements of an agreement including protocols, agreed minutes, attachments and maps

United Nations Treaty Series Publications Texts of agreements registered and filed and recorded with the Secretariat All languages of the registered agreements Over 140 languages Translations into English and French

UNTS on the Internet http://treaties.un.org Full texts of treaties and treaty actions with textual component are available. Including declarations, statements, reservations, etc. Search and retrieval capabilities for all treaties Facility to view, save and print the full texts of treaties. Full texts of multilateral treaties deposited with the Secretary-General awaiting publication in the UNTS

Requirements for Faster Publication of Treaties Submitted for Registration Clean, legible hard copies submitted TRANSLATIONS – into English and French Electronic text (Wordperfect, Word, PdF, Tif, etc.)

Legal Technical Assistance Provided by the Office of Legal Affairs Research for Member States and their Governments Texts and parties to multilateral and bilateral treaties Capacity-building Trainings at Headquarters and in the regions Individual assistance provided by Legal Officers on specific treaty-related questions Reference to substantive offices and treaty bodies

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