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

2. Exploring the law of treaties A case study 2

3. 3 Report of the International Law Commission, 2013 (Annex B, para. 3) 3. … a global convention on crimes against humanity appears to be a key missing piece in the current framework of international humanitarian law, international criminal law, and international human rights law. The objective of the International Law Commission on this topic, therefore, would be to draft articles for what would become a Convention on the Prevention and Punishment of Crimes against Humanity (Crimes against Humanity Convention).

4. 4 An international agreement:   Concluded between States or international organizations   In written form   Governed by international law It does not matter:   Whether the treaty is embodied in a single instrument or in two or more related instruments and whatever its particular designation   How the treaty is designated by the Parties [See art. 2(1)(a)) 1969 Vienna Convention; art. 2(1)(a) 1986 Vienna Convention] What is a “treaty”?

5. 5 The forum for the negotiations The International Law Commission has concluded its work and submitted to the General Assembly a full set of draft articles for a Convention. The draft articles have been well received by delegations in the debate at the Sixth Committee of the General Assembly, and there appears to be consensus on the idea of adopting a multilateral convention. What is the next step? In what forum should the negotiations be conducted?

6. 6 Preparation for the Conference of Plenipotentiaries Your Government has decided to send a delegation to the Conference of Plenipotentiaries convened by the General Assembly to negotiate and adopt the Convention. You are put in charge of the legal aspects of the preparation of the mission. What is needed for the participation of your delegation to a Conference of Plenipotentiaries?

7. 7 Credentials for participation in the Conference of Plenipotentiaries We, John Smith, President of the Republic of Alpha, hereby certify that the delegation of Alpha to the Plenipotentiary Conference to be held in Addis Ababa from 8 to 11 April 2020: has full powers; is authorized to represent its Government without restrictions, and has the right to sign the final acts. The delegation comprises: 1. Ms X, Head of the delegation; 2. Mr. Y, Deputy head of the delegation, and 3. Mr. Z, Delegate. Done at …, on …. [Signature and official seal]

8. 8 Starting the negotiations The Conference of Plenipotentiaries start and the main working document is the draft articles submitted by the International Law Commission. These articles are limited to the substantive provisions of the convention. What other elements constitute the usual form of a multilateral treaty?

9. 9 Basic elements of a multilateral treaty  Title  Preamble  Main text (substantive provisions)  Final clauses  Testimonium In witness thereof the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention. Done at … this …th day of …, ….  Signature pages  Annexes (if any)

10. Final clauses Participation Participation Signature Signature Consent to be bound Consent to be bound Reservations Reservations Declarations Declarations Entry into force Entry into force Provisional application Provisional application Depositary Depositary Registration and publication Registration and publication Relationship to other treaties Relationship to other treaties Settlement of disputes Settlement of disputes Amendment Amendment Status of annexes Status of annexes Withdrawal/denunciation Withdrawal/denunciation Duration/Termination Duration/Termination Authentic texts Authentic texts 10

11. A specificity of final clauses Once adopted, a treaty produces certain legal effects. Final clauses become immediately applicable. Article 24, paragraph 4, of the Vienna Convention "The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of adoption of its text." 11

12. 12 Adopting the text of the Convention The negotiations on the Convention have successfully concluded and the Conference is ready to adopt the final text of the Convention. At this stage, however it is found out that the Rules of procedure, adopted at the start of the Conference, are silent on the procedure to be followed for this. How should the text be adopted by the Conference?

13. 13 Signing the Convention The Conference has now adopted the final text and it is decided to open the Convention for signature immediately and to hold a signature ceremony on the final day of the Conference. [Not a recommended practice.] The Head of your delegation is a very senior member of the Government. She is the Minister of Justice, under the competence of whom the subject-matter of the Convention falls under the Constitution. Can the Head of delegation sign the Convention?

14. 14 Signing the Convention The Head of your Delegation points out that the Credentials that she submitted at the start of the Conference gave her “full powers” and authorized her to represent her Government without restrictions. In particular, the Credentials gave her full powers “to do and perform on behalf of the Government all necessary acts in relation to the general or specific objects to be discussed at the said Conference, including by signing any final acts resulting from the Conference.” Can the Head of delegation sign the Convention?

15. 15 Signing the Convention You have urgently contacted your capital to obtain the release of full powers for the Head of your delegation. Both the President and the Prime Minister are currently away on official visit abroad. In the absence of the two higher authorities, and in conformity with the relevant domestic laws, the Deputy Prime Minister is in charge. You receive an instrument of full powers signed by the Deputy Prime Minister “on behalf of the Head of Government”. Can the Head of delegation sign the Convention with this document?

16. 16 Model instrument of 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]

17. 17 Participation in the treaty In the negotiations, two formulations were proposed to the relevant provision. Which one is preferable? Option 1:”This Convention is open for signature for all States.” Option 2: “This Convention is open for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention.”

18. 18 Participation of international organizations A proposal is tabled in the negotiations for a provision phrased as follows: “1.The present Convention shall also be open for signature by regional integration organizations. For such organizations, the Convention shall be subject to formal confirmation or accession. 2.Regional integration organization” shall mean an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by this Convention. Such organizations shall declare, in their instruments of formal confirmation or accession, the extent of their competence with respect to matters governed by this Convention. Subsequently, they shall inform the depositary of any substantial modification in the extent of their competence.” What would be the effect of such clause?

19. 19 Effects of the signature The Convention contains the following provision: “The present Convention shall be open for signature by all States at the United Nations Headquarters as of 11 April 2020. It shall be subject to ratification, acceptance or approval by signatory States. It shall be open for accession by any State which has not signed the Convention.” What is the legal effect of the signature of the Convention by the Head of delegation?

20. 20 Consent to be bound by the treaty The Parliament of your country has ratified the Convention. Your Permanent Mission to the United Nations sends a certified true copy of the corresponding Law, as published in the Official Gazette and signed by the Head of State, under cover of a note verbale by which the Permanent Mission: (1) informs the Secretary-General, as depositary of the Convention, that the Convention was ratified; and (2) confirms the intention of your country to observe the Convention. Does this document constitute an instrument of consent to be bound by the Convention?

21. 21 Model instrument of ratification, acceptance of 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 Head of State, Head of Government or Minister for Foreign Affairs] 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]

22. 22 Consent to be bound by the treaty Upon your request, the Ministry of Foreign Affairs prepares a proper instrument of ratification following the model. The Minister, however, is currently recovering for a very serious surgical procedure and is incapacitated. In his absence, the Deputy Minister has been appointed “Minister for Foreign Affairs ad interim” and, in this capacity, he signs the instrument of ratification. Does this document constitute a proper instrument of consent to be bound by the Convention?

23. 23 Deposit of the instrument of consent to be bound The Permanent Mission to the United Nations has received a faxed copy of the instrument of ratification from capital. The original instrument, however, will take a few weeks to reach New York by diplomatic pouch. In order to speed up the process, the Permanent Representative wishes to deposit with the Secretary-General, as depositary of the Convention, the copy of the instrument. Will a copy of the instrument of ratification be accepted in deposit by the Secretary-General?

24. 24 Entry into force of the treaty The Convention contains the following provision: “1. The present Convention shall enter into force on the thirtieth day after the deposit of the twentieth instrument of ratification, acceptance, approval or accession. 2. For each State ratifying, accepting, approving or acceding to the Convention after the deposit of the twentieth such instrument, the Convention shall enter into force on the thirtieth day after the deposit of its own such instrument.” “1. The present Convention shall enter into force on the thirtieth day after the deposit of the twentieth instrument of ratification, acceptance, approval or accession. 2. For each State ratifying, accepting, approving or acceding to the Convention after the deposit of the twentieth such instrument, the Convention shall enter into force on the thirtieth day after the deposit of its own such instrument.” Your State was the 50 th signatory of the Convention and the 15 th State to have ratified it. When shall the Convention become binding for your State?

25. 25 An issue relating to the interpretation of the Convention Soon after the entry into force of the Convention, a divergence of views arises among States Parties regarding its interpretation. Some States argue that the case law of the International Criminal Court on the definition of crimes against humanity shall be taken into consideration in applying the Convention. Some other States hold, on the contrary, that the Convention and the Rome Statute of the International Criminal Court are separate instruments and that the obligations of the Convention shall be interpreted autonomously.

26. 26 Relevant parts of the Convention Preamble: “Recalling the important steps accomplished by the international community in fighting crimes against humanity, including the adoption of the Rome Statute” Article 2: Defines “crimes against humanity” in the exact same terms as the Rome Statute. Article 6: Provides that persons charged with genocide shall be tried “by a competent tribunal of any State party or by such international criminal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction”

27. 27 Rules on interpretation General rule of interpretation (art. 31 VCLT)   In good faith   In accordance with the ordinary meaning to be given to the terms of the treaty   In their context (text, preamble, annexes, etc.)   In light of the object and purpose   Subsequent practice and agreement   Relevant rules of international law Supplementary means of interpretation (art. 32 VCLT)   Include: preparatory works   Only when the general rule above leaves the meaning ambiguous or obscure or leads to a manifestly absurd or unreasonable result

28. 28 A further issue… The issue of interpretation is discussed at the first meeting of the Conference of States Parties, and is the subject-matter of lively debate. A resolution of the Conference of States Parties is proposed by which the Conference would decide that “the Convention shall be interpreted in conformity with the case law of the International Criminal Court”. The Parties not being able to reach consensus on the matter, the draft resolution is put to a vote and is adopted by a two-thirds majority. Does this resolution change the interpretation of the Convention?

29. 29 Reservations and interpretative declarations The Parliament of your country has ratified the Convention, but has also adopted a number of reservations and interpretative declarations to the Convention. The Convention is silent on the matter. Is it possible for your country to formulate reservations and/or interpretative declarations to the Convention?

30. 30 Qualification of a declaration Article 9 of the Convention provides as follows: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” The instrument of ratification of your country contains a “Solemn Interpretative Declaration”, which reads as follows: “With reference to Article 9 of the Convention, State Alpha wishes to clarify that it does not consider itself subject to the jurisdiction of the International Court of Justice.” How should this declaration be understood?

31. 31 What is a reservation? Article 2(1)(a) of the Vienna Convention “reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State Therefore: A reservation is a unilateral act A reservation is a unilateral act A reservation purports either (i) to exclude or (ii) to modify the legal effect of the treaty A reservation purports either (i) to exclude or (ii) to modify the legal effect of the treaty A reservation may be made when signing, ratifying, accepting, approving or acceding to the treaty A reservation may be made when signing, ratifying, accepting, approving or acceding to the treaty The name of the reservation does not matter The name of the reservation does not matter

32. 32 Acceptance and objection to reservations Twelve months after the deposit of your instrument of ratification, several countries have reacted to the reservation made by your country: State B“State B accepts the reservation formulated by Alpha” State C“State C does not accept the reservation formulated by Alpha” State D“State D does not accept the reservation formulated by Alpha and opposes to the entry into force of the Convention between States Alpha and D” State ERemains silent Is your country bound by the Convention vis-à-vis these States?

33. 33 Legal effects of a reservation Would the International Court of Justice have jurisdiction to settle a dispute regarding the implementation of the Convention between your country, submitted by one of the following countries?   State B, which has accepted your reservation   State C, which has objected to your reservation Could your Government bring a case against any of these two States on a dispute regarding the implementation of the Convention?

34. 34 Legal effects of a reservation Another State, State X, has made a similar reservation to your Government’s upon ratifying the Convention: ““With regard to Article 9, State X does not consider itself bound by the jurisdiction of the International Court of Justice. Any of the parties to a dispute regarding the interpretation, application or fulfilment of the Convention may submit the dispute to arbitration.” What is the legal effect of this reservation vis-à-vis:   State B, which has accepted the reservation   State C, which has objected to the reservation

35. Legal effects of an objected reservation 35 Reservation that excludes the legal effect of a provision Reservation that modifies the legal effect of a provision

36. 36 Legal effects of a reservation State Y“Nothing in the Convention requires or authorizes legislation or other action by State Y prohibited by its Constitution as interpreted by State Y.” State B“State B is of the view that a State party to the Convention may not invoke the provisions of its national legislation, including the Constitution, to justify that it does not fulfil its obligations under the Convention and therefore objects to the reservation made by State Y.” State C“State C believes that the reservation made by State Y should be considered invalid because it is not in keeping with the object and purpose of the Convention, and therefore objects to this reservation.” State D“State D accepts the reservation formulated by State Y.“

37. 37 What is the legal effect of a reservation incompatible with the object and purpose of the treaty? Two options:  The reserving State would be bound by the treaty without the benefit of the reservation, or  The reserving State would not be bound by the treaty Guideline 4.5.3:  The status of an invalid reservations depends on the intention of the reserving State  However: it is presumed that, unless otherwise established, the intention was to become a contracting State without the benefit of the reservation The practice of the Secretary-General as depositary  A reservation is circulated to States  States may express their views through acceptances, objections or declarations

38. 38 Late reservations In debates held after the deposit of the instrument of ratification, the matter was raised in the Parliament of your country that the Convention contains certain provisions contradicting the Constitution on the issue of immunity of the Head of State. A law is passed adding a reservation to the Convention to that effect, which your office is requested to deposit with the Secretary- General, as depositary of the Convention. Is it possible for your country to submit a reservation at this stage? What procedure will be followed by the Secretary-General in this case?

39. 39 A declaration on territorial application In its instrument of accession to the Convention, State H includes a declaration in which it states the following: “By virtue of the present accession, the Convention becomes applicable only to the metropolitan territory of State H. This accession shall not extend to the non-metropolitan territories of State H and, until further notice, the Convention shall not apply to them.” The Convention contains no provision on territorial application. What is the legal effect of this declaration?

40. 40 Another declaration on territorial application In its instrument of accession to the Convention, State J includes the following declaration: “Until further notice, State J does not accept the obligations under Article 5 of the Convention relating to the implementation of domestic legislation with respect to its non-metropolitan territories.” What is the legal effect of this declaration?

41. 41 Amendments to a multilateral treaty The Convention contains a provision on amendments which reads, inter alia, as follows: “2. The adoption of an amendment at a meeting of the Conference of States Parties on which consensus cannot be reached shall require a two-thirds majority of States Parties. 3.Except as provided in paragraph 4, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Depositary by two thirds of them. 4.Any amendment to Article 2 (Definition of Crimes against Humanity) shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments or ratification or acceptance.”

42. 42 Entry into force of amendments At the first meeting of the Conference of States Parties of the Convention, two amendments are adopted: one to Article 2 (with the effect of changing the definition of the crime), and one to Article 9 (foreseeing the possibility of submitting disputes to arbitration). Your Government deposits instruments of acceptance of both amendments with the Secretary-General. One third only of the States Parties to the Convention have, to date, accepted these amendments. Is your country bound by these amendments?

43. 43 Entry into force of amendments By 15 September 2030, the amendments have been accepted by more than two thirds of States Parties. On 16 September, a State accedes to the Convention. Its instrument of accession refers to the Convention without any reference to the amendments. Is this State bound by the amendments?

44. 44 Amendment procedures Amendment procedures should avoid complex or unclear rules that may lead to practical difficulties. Unambiguous formulae for amendments should include rules governing: Proposal of amendments (by a Party). Submission of the amendment proposal for circulation to all Parties (normally by the relevant secretariat). Adoption procedures (if including a specific proportion of votes, clearly indicating whether this proportion relates to all the Parties or all the Parties present at the time that the vote is taken). Circulation of the adopted amendment by the depositary. Consent to be bound (acceptance/ratification). Entry into force (if including a specific proportion, indicating whether the number of acceptances is calculated on the basis of the number of Parties at the time of adoption or at the time of acceptance). Effect (binding only those that accepted or binding all).

45. 45 Amendments when the treaty is silent No amendment procedures: Vienna Convention, 1969 (articles 39, 40 and 41). Where a treaty is silent, it may be amended by agreement between the Parties. Unless the treaty otherwise provides, where a State becomes Party to a treaty which has been amended, it becomes, failing an expression of a different intention by that State, Party to the treaty as amended. That State is also a Party to the unamended treaty in its relations to States Parties to the unamended treaty.

46. 46 Corrections to the text of the Convention In the course of the process of ratification of the amendments adopted by the Conference of States Parties, your Government becomes aware that the Arabic version of the Certified True Copy of the Convention adopted by the Conference of Plenipotentiaries and circulated by the Secretary- General is missing one paragraph in the definition of crimes against humanity, which appears in all other linguistic versions of the Convention. What should be done to correct this mistake?

47. 47 A subsequent treaty A violent rebellion arises in a region at the border between two Parties to the Convention, States G and F. G sends its armed forces to suppress the rebellion, with some assistance from State F. G and F conclude a bilateral treaty by which the agree to put aside their obligations under the Convention to prosecute crimes against humanity in the region concerned. The treaty raises controversy. It appears that the MFA of F has received bribes from G and concluded the treaty without the required ratification by its Parliament. In addition, NGOs argue that the treaty contradicts the imperative principles enshrined in the Convention.

48. 48 Invalidity of treaties Grounds of invalidity   Breach of internal provisions regarding the competence to conclude treaties   Restrictions on authority to express consent   Error   Fraud   Corruption of a State representative   Coercion of a State representative   Coercion against State (threat or use of force)   Conflict with jus cogens

49. 49 Suspension and termination of treaties Given the controversy on the matter, and fearing that possible disputes could be submitted to the International Court of Justice, State G deposits with the Secretary-General, as depositary to the Convention, an instrument of withdrawal from the Convention. It also argues that, in any event, the Convention is not applicable to itself due a to a fundamental change of circumstances, in which the very existence of State G is at stake. How do you assess these actions under the law of treaties?

50. 50 Role of the depositary Your Minister for Foreign Affairs takes the view that all the issues arising from the Convention require the urgent attention of the Secretary-General as the depositary of the Convention. Accordingly, he requires you to send an official communication to the Secretary-General requesting that he take position on:   Whether the reservations made by several States contradict the object and purpose of the Convention;   Whether State G is still bound by the Convention. Is this course of action advisable?

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