1 Multilateral Treaties Deposited with the Secretary-General By Bradford C. Smith Legal Officer Treaty Section Office of Legal Affairs

2 How to Become Party to a Treaty? Signature Consent to be bound Signature Consent to be bound Referred to as “Simple Signature” subject to ratification, acceptance or approval Referred to as “Simple Signature” subject to ratification, acceptance or approval Definitive Signature Definitive Signature Accession Accession Declarations, Reservations, Notifications Declarations, Reservations, Notifications Deposit of Instruments Deposit of Instruments

3 Signature When? When? What States and entities can sign? What States and entities can sign? Who can sign on behalf of a State? Who can sign on behalf of a State?

4 Signature Who can sign on behalf of a State? Heads of State Heads of State Heads of Government Heads of Government Ministers for Foreign Affairs Ministers for Foreign Affairs Acting or Ad Interim Head of State or Government or Minister for Foreign Affairs Acting or Ad Interim Head of State or Government or Minister for Foreign Affairs

5 Signature Full Powers All other representatives wishing to sign treaties must be in possession of FULL POWERS.

6 Signature Requirements for full powers A valid instrument of full powers must contain the following elements: A valid instrument of full powers must contain the following elements: Authorize signature; Authorize signature; Identify the treaty; Identify the treaty; Specify the name of the individual authorized to sign; Specify the name of the individual authorized to sign; Issued and signed by either the Head of State or Government or the MFA or by a person exercising the power of one of the three authorities ad interim; Issued and signed by either the Head of State or Government or the MFA or by a person exercising the power of one of the three authorities ad interim; Dated Dated

7 Signature Venue Signature Venue Appointment for signature in the Treaty Section Appointment for signature in the Treaty Section Facsimile No: (212) Facsimile No: (212) Phone No: (212) Phone No: (212)

8 Signature Treaty Events Millennium Summit (2000) Millennium Summit (2000) Focus 2001: Women and Children Focus 2001: Women and Children Treaty Event: Multilateral Treaties on Terrorism (10 to 16 November 2001) Treaty Event: Multilateral Treaties on Terrorism (10 to 16 November 2001) Focus 2002: Sustainable Development Focus 2002: Sustainable Development Focus 2003: Treaties Against Transnational Organized Crime and Terrorism Focus 2003: Treaties Against Transnational Organized Crime and Terrorism Focus 2004: Treaties on the Protection of Civilians Focus 2004: Treaties on the Protection of Civilians Focus 2005: Responding to Global Challenges Focus 2005: Responding to Global Challenges

9 Simple Signature Legal Implications No positive legal obligations; No positive legal obligations; Indicates a State’s intention to express its consent to be bound; Indicates a State’s intention to express its consent to be bound; Creates an obligation to refrain in good faith from acts that would be contrary to the object and purpose of a treaty (until it shall have made its intention clear not to become a party to the treaty – art. 18 VCLT). Creates an obligation to refrain in good faith from acts that would be contrary to the object and purpose of a treaty (until it shall have made its intention clear not to become a party to the treaty – art. 18 VCLT). No time limit for ratification. No time limit for ratification.

10 Signature Review Is the treaty open for signature? Is the treaty open for signature? Does the treaty allow your State to sign? Does the treaty allow your State to sign? Who will sign? Who will sign? Are full powers required? Are full powers required? Appointment for signature. Appointment for signature.

11 Signature Problem 1 Your Government would like to sign the Stockholm Convention on Persistent Organic Pollutants. You have been presented with draft full powers for review. What do you advise? (Assume Convention is open for signature.) Your Government would like to sign the Stockholm Convention on Persistent Organic Pollutants. You have been presented with draft full powers for review. What do you advise? (Assume Convention is open for signature.)

12 Signature Answer to Problem 1 Open to all States until 12 December 2002; Open to all States until 12 December 2002; Names of officials who will be signing are specified; Names of officials who will be signing are specified; Convention identified; Convention identified; Signature is valid (Deputy Minister and ACTING MFA); Signature is valid (Deputy Minister and ACTING MFA); Dated; Dated; BUT: No authorization to sign the Convention. BUT: No authorization to sign the Convention.

13 Signature Model Instrument of Full Powers Full Powers (To be signed by the Head of State, Head of Government or Minister for Foreign Affairs) I, [name and title of the Head of State, Head of Government or Minister for Foreign Affairs], HEREBY AUTHORISE [name and title] to sign the [title of treaty] on behalf of the Government of [State]. Done at [place] on [date]. [Signature and title]

14 Consent to be Bound To become party to a treaty, a State must express its consent to be bound by a treaty at international law.

15 Consent to be Bound How? Definitive Signature Definitive Signature Simple Signature followed by Ratification, Acceptance or Approval Simple Signature followed by Ratification, Acceptance or Approval Accession Accession

16 Consent to be Bound How? Succession An undertaking at international law whereby a State assumes the rights and obligations under a treaty previously applied to its territory by a predecessor State.

17 Consent to be Bound Domestic “Ratification” A State is not a party to a treaty by simply “ratifying” a treaty domestically. A State is not a party to a treaty by simply “ratifying” a treaty domestically.

18 Consent to be Bound Domestic “Ratification” States must ensure domestic legislative requirements are completed prior to consenting to be bound; States must ensure domestic legislative requirements are completed prior to consenting to be bound; State cannot claim that its consent to be bound is invalid due to violation of its internal law (VCLT, art. 46(1)). State cannot claim that its consent to be bound is invalid due to violation of its internal law (VCLT, art. 46(1)).

19 Consent to be Bound Basic requirements for a valid instrument Identify treaty Identify treaty Declaration of undertaking Declaration of undertaking Expression of intent of the Government to be bound by the treaty and to undertake faithfully to observe and implement its provisions Expression of intent of the Government to be bound by the treaty and to undertake faithfully to observe and implement its provisions Issued and signed Issued and signed Head of State or Government or the MFA or by a person exercising the power of one of the three authorities ad interim; Head of State or Government or the MFA or by a person exercising the power of one of the three authorities ad interim; Dated Dated

20 Consent to be Bound Problem 2 The following documents have been lodged for deposit with the Secretary-General. Should these documents be accepted in deposit as valid binding instruments? The following documents have been lodged for deposit with the Secretary-General. Should these documents be accepted in deposit as valid binding instruments?

21 Answer to Problem 2-A Amendment is open for “Acceptance” by States that are party to the Convention; Amendment is open for “Acceptance” by States that are party to the Convention; Amendment is identified; Amendment is identified; Properly signed and dated; Properly signed and dated; BUT: No unambiguous expression of the State’s intent to be bound by the Amendment and to faithfully implement its provisions. BUT: No unambiguous expression of the State’s intent to be bound by the Amendment and to faithfully implement its provisions.

22 Answer to Problem 2-B Assume that State has signed; Assume that State has signed; Convention is identified; Convention is identified; Properly signed; Properly signed; Not dated; Not dated; But: No unambiguous undertaking to be bound by the Convention and to faithfully implement its provisions. But: No unambiguous undertaking to be bound by the Convention and to faithfully implement its provisions.

23 Consent to be Bound Model Instrument of Ratification, Acceptance or Approval Ratification/Acceptance/Approval (To be signed by Head of State, Head of Government or Minister for Foreign Affairs) WHEREAS the [title of treaty] was adopted at [place] on [date], AND WHEREAS the said [treaty] has been signed on behalf of the Government of [State] on [date], NOW THEREFORE I, [name and title of the HS, HG or MFA] declare that the Government of [State], having considered the above [treaty], [ratifies/accepts/approves] the same and undertakes faithfully to perform and carry out the stipulations therein contained. IN WITNESS WHEREOF, I have signed this instrument of [ratification/acceptance/approval] at [place] on [date]. [Signature] [Signature]

24 Consent to be Bound Additional requirements for a valid instrument Optional Declarations Optional Declarations Mandatory Declarations Mandatory Declarations Notifications Notifications Reservations Reservations Authorized? Authorized? Prohibited? Prohibited? Silent? Silent?

25 Consent to be Bound Optional and Mandatory Declarations Legally binding and must be included in a duly signed instrument of ratification, acceptance, etc. or signed in their own right. Legally binding and must be included in a duly signed instrument of ratification, acceptance, etc. or signed in their own right. Often such declarations must be made upon ratification, acceptance, approval or accession. Often such declarations must be made upon ratification, acceptance, approval or accession.

26 Consent to be Bound Optional Declarations E.g.: International Covenant on Civil and Political Rights E.g.: International Covenant on Civil and Political Rights Article 41: A State Party may at any time declare that it recognizes the competence of the Human Rights Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant. Article 41: A State Party may at any time declare that it recognizes the competence of the Human Rights Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant. E.g.: Article 36, paragraph 2 of the Statute of the ICJ recognizing as compulsory the jurisdiction of the Court. E.g.: Article 36, paragraph 2 of the Statute of the ICJ recognizing as compulsory the jurisdiction of the Court.

27 Consent to be Bound Mandatory Declarations E.g.: OPCRC on the involvement of children in armed conflict E.g.: OPCRC on the involvement of children in armed conflict Article 3(2) provides: Each State party shall deposit a binding declaration upon ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced. Article 3(2) provides: Each State party shall deposit a binding declaration upon ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced.

28 Consent to be Bound Notifications Notifications typically provide information as required under a treaty. Notifications typically provide information as required under a treaty. Distinction between declarations and notifications is not always made. Distinction between declarations and notifications is not always made. E.g.: International Convention for the Suppression of the Financing of Terrorism E.g.: International Convention for the Suppression of the Financing of Terrorism Article 7 (3): Upon ratifying, accepting, approving or acceding to this Convention, each State Party shall notify the SG of the UN of the jurisdiction it has established in accordance with paragraph 2 (Note that a State Party MAY establish jurisdiction over specified offences in paragraph 2). Article 7 (3): Upon ratifying, accepting, approving or acceding to this Convention, each State Party shall notify the SG of the UN of the jurisdiction it has established in accordance with paragraph 2 (Note that a State Party MAY establish jurisdiction over specified offences in paragraph 2).

29 Consent to be Bound Notifications E.g.: International Convention for the Suppression of Terrorist Bombings E.g.: International Convention for the Suppression of Terrorist Bombings Article 6(2) – Same notification as above. Article 6(2) – Same notification as above. E.g.: UNC Against Transnational Organized Crime E.g.: UNC Against Transnational Organized Crime Notification under art. 5 (3): States whose domestic law requires an additional element than the offences established in accordance with the article must so notify the SG; Notification under art. 5 (3): States whose domestic law requires an additional element than the offences established in accordance with the article must so notify the SG; Notification under art. 16(5): For States that make extradition conditional on the existence of a treaty, shall inform the SG whether they will take this Convention as the legal basis for cooperation on extradition with other States Parties to this Convention. Notification under art. 16(5): For States that make extradition conditional on the existence of a treaty, shall inform the SG whether they will take this Convention as the legal basis for cooperation on extradition with other States Parties to this Convention. Notification under art. 18 (13): Designation of a central authority for purposes of receiving mutual legal assistance; Notification under art. 18 (13): Designation of a central authority for purposes of receiving mutual legal assistance; Notification under art. 18 (14): Designation of language. Notification under art. 18 (14): Designation of language. Notification under art. 31(6): Designation of an authority that can assist other states in developing measures to prevent transnational organised crime Notification under art. 31(6): Designation of an authority that can assist other states in developing measures to prevent transnational organised crime

30 Consent to be Bound Reservations Reservations Reservations A reservation is any statement - however phrased or named - which purports to exclude or modify the legal effect of a treaty provision. A reservation is any statement - however phrased or named - which purports to exclude or modify the legal effect of a treaty provision. Legally binding and must be included in a duly signed instrument of ratification, acceptance, etc. or signed in their own right. Legally binding and must be included in a duly signed instrument of ratification, acceptance, etc. or signed in their own right. Must be done upon signature or deposit. If done upon signature must be confirmed upon ratification (exceptions). Must be done upon signature or deposit. If done upon signature must be confirmed upon ratification (exceptions). Modification/Withdrawal Modification/Withdrawal

31 Consent to be Bound Reservations Treaties silent as to reservations (Human Rights treaties). Treaties silent as to reservations (Human Rights treaties). Certain reservations allowed/prohibited. Certain reservations allowed/prohibited. Reservations altogether prohibited (Stockholm Convention, Rome Statute). Reservations altogether prohibited (Stockholm Convention, Rome Statute). Authorized reservations (settlement of disputes) E.g.: Article 35 of the UNC Against Transnational Organized Crime – Each State Party may, at the time of signature, ratification, acceptance or approval or of accession to this Convention, declare that it does not consider itself bound by paragraph 2 of this article (mandatory arbitration and referral to ICJ). Authorized reservations (settlement of disputes) E.g.: Article 35 of the UNC Against Transnational Organized Crime – Each State Party may, at the time of signature, ratification, acceptance or approval or of accession to this Convention, declare that it does not consider itself bound by paragraph 2 of this article (mandatory arbitration and referral to ICJ).

32 Consent to be Bound Review Definitive Signature Definitive Signature Is the treaty open for signature? Is the treaty open for signature? Does the treaty allow your State to sign? Does the treaty allow your State to sign? Who will sign? Who will sign? Are full powers required? Are full powers required?

33 Consent to be Bound Review SignatoryRatification, Acceptance or Approval SignatoryRatification, Acceptance or Approval Non-signatoryAccession Non-signatoryAccession Conditions for Accession? Conditions for Accession? Declarations/Notifications? Declarations/Notifications? Reservations? Reservations?

34 Consent to be Bound Problem 3 State A would like to become a party to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. State A has signed the Convention on the Rights of the Child, but has not ratified it. State A has not signed the Optional Protocol. You are presented with an instrument. What do you advise? State A would like to become a party to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. State A has signed the Convention on the Rights of the Child, but has not ratified it. State A has not signed the Optional Protocol. You are presented with an instrument. What do you advise?

35 Answer to Problem 3 The OP is open for signature by any State that is a party to the Convention or has signed it (article 9); The OP is open for signature by any State that is a party to the Convention or has signed it (article 9); The OP is subject to ratification and is open for accession by any State; The OP is subject to ratification and is open for accession by any State; The OP is specified; The OP is specified; Declaration of undertaking present; Declaration of undertaking present; Valid signature and date; Valid signature and date; But – Missing a mandatory declaration. But – Missing a mandatory declaration.

36 Consent to be Bound Problem 4 State B would like to become a party to the Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents. The instrument has been submitted for deposit. What do you advise? State B would like to become a party to the Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents. The instrument has been submitted for deposit. What do you advise?

37 Answer to Problem 4 Open for accession with conditions; Open for accession with conditions; Convention is specified; Convention is specified; Declaration of undertaking present; Declaration of undertaking present; Signed and dated; Signed and dated; Declaration under art. 26(2)(b) is authorized. Declaration under art. 26(2)(b) is authorized.

38 Consent to be Bound Problem 5 State C is one of several successor States to the former Republic of State D, which has ceased to exist. State C would like to become a party to the Montreal Protocol on Substances that Deplete the Ozone Layer. State C has submitted the below instrument for review. What do you advise? State C is one of several successor States to the former Republic of State D, which has ceased to exist. State C would like to become a party to the Montreal Protocol on Substances that Deplete the Ozone Layer. State C has submitted the below instrument for review. What do you advise?

39 Answer to Problem 5 To become a party to the Protocol, State C must be a party to the Vienna Convention (art. 16 of Convention); To become a party to the Protocol, State C must be a party to the Vienna Convention (art. 16 of Convention); State C can succeed possibly or accede to the Convention; State C can succeed possibly or accede to the Convention; It can then accede to the Protocol; It can then accede to the Protocol; Instrument is valid in all respects. Instrument is valid in all respects.

40 Deposit of Instruments Place and Method Instruments become effective only when deposited with SG at UNHQ; Instruments become effective only when deposited with SG at UNHQ; Personal delivery to the S-G or to his representative - the Legal Counsel or the Chief of the Treaty Section; Personal delivery to the S-G or to his representative - the Legal Counsel or the Chief of the Treaty Section; By mail, by facsimile or by . By mail, by facsimile or by .

41 Deposit of Instruments Place and Methods Appointment for deposit in the Treaty Section Appointment for deposit in the Treaty Section Facsimile No: (212) Facsimile No: (212) Phone No: (212) Phone No: (212) Treaty Events Treaty Events

42 Deposit of Instruments Date of Deposit Date when instrument is received at UNHQ either by SG, the Legal Counsel, the Treaty Section or by the Mail Unit; Date when instrument is received at UNHQ either by SG, the Legal Counsel, the Treaty Section or by the Mail Unit; Deposit will produce its effect in accordance with provisions of a treaty. Deposit will produce its effect in accordance with provisions of a treaty.

43 Copyright Notice Copyright 2005 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 2005 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.