1. Multilateral Treaties Deposited with the Secretary-General
SG’s policy is to restrict assumption of depositary functions to open multilateral treaties of worldwide interest – including: (1) treaties adopted by GA, (2) concluded by a plenipotentoary conference convened by a UN organ, and (3) regional treaties concluded within framework of regional commissions.
2. Text is authenticated by a procedure agreed upon by States particiapting in its elaboration – signature, initialing, signing final act;
3. Original prepared on basis of text as adopted by resolution or as authenticated (eg, final act).
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
Referred to as “Simple Signature” subject to ratification, acceptance or approval
Definitive Signature
Accession
Deposit of Instruments
Other Final Clauses
Consent to be bound – for example, ratification, acceptance or approval.
Final Clauses: Provisions typically found at the end of a treaty regulating procedural aspects of the treaty operation. In addition to provisions dealing with participation (signature and consent to be bound), final clauses also include the following: provisional application, reservations, declarations, entry into force, depositary, territorial application, relationship to other treaties, settlement of disputes, amendments, status of annexes, withdrawal/denunciation, termination and authentic texts.

3. Signature When? What States and entities can sign?
Who can sign on behalf of a State?
Is the treaty open for signature? Most treaties are only open for a finite period of time. For example, the United Nations Convention Against Corruption will be open for signature from 9 to 11 December 2003 in Merida, Mexico, and thereafter, at UNHQ, until 9 December Other treaties, mostly the human rights treaties, are open for signature indefinitely.
All States, Vienna formula (UN Member States, Members of the Specialized Agencies or Parties to the Statute of the ICJ) or regional agreements, i.e., UNECE, ESCWA, (e.g., Aarhus Convention is only open to members of ECE), international organizations (EC).

4. Signature Who can sign on behalf of a State?
Heads of State
Heads of Government
Ministers for Foreign Affairs
Acting or Ad Interim Head of State or Government or Minister for Foreign Affairs
The three authorities, by virtue of their functions, may sign a treaty on behalf of a State.
President Fox of Mexico signing the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2002

5. Signature Full Powers FULL POWERS.
All other representatives wishing to sign treaties must be in possession of
FULL POWERS.
Note that Credentials and Full Powers are distinct. Credential authorize participation in a conference and signature of the final act of such a conference.

6. Signature Requirements for full powers
A valid instrument of full powers must contain the following elements:
Authorize signature;
Identify the treaty;
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;
Dated
Model instrument provided in Treaty Handbook.
Name of individual must be specified. TITLE alone will not suffice.
If Acting or Ad Interim, that fact must be clear on the face of the instrument. Signing “for” or “on behalf of” is not acceptable.

7. Signature Venue Appointment for signature in the Treaty Section
Facsimile No: (212)
Phone No: (212)
To make an appointment, PMs must contact the TS by letter or fax and provide the following information: preferred date, preferred time, who will be undertaking the action, and signed copies of full powers.
PR of Vietnam signing WHO Framework Convention on Tobacco Control.

8. Signature Treaty Events
Millennium Summit (2000)
Focus 2001: Women and Children
Treaty Event: Multilateral Treaties on Terrorism (10 to 16 November 2001)
Focus 2002: Sustainable Development
Focus 2003: Treaties Against Transnational Organized Crime and Terrorism
Focus 2004: Treaties on the Protection of Civilians
*Focus 2004 will be held from 21 to 24 September Focus 2004 publication available.

9. Simple Signature Legal Implications
No positive legal obligations;
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).
No time limit for ratification.
Commodity agreements are an exception and do provide for time limits for ratification.
Signature may confer other benefits, such as allowing signatory States to attend meetings. For example, the Rome Statute provides that signatory States may attend the Assembly of States parties as observers.
No precedent for unsigning. Rome State (US and Israel).

10. Signature Review Is the treaty open for signature?
Does the treaty allow your State to sign?
Who will sign?
Are full powers required?
Appointment for signature.
At this point, hand out Problem I.

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 and approval. What do you advise?

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

13. 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.

14. Consent to be Bound How? Definitive Signature
Simple Signature followed by Ratification, Acceptance or Approval
Accession
MUST LOOK AT THE PROVISIONS OF THE TREATY CONCERNED;
Definitive signature is not very common and there are time limits;
Simple signature – there may also be time limits, however, there are no time limits for ratification, acceptance or approval;
Accession – there may be conditions for accession – after closing for signature, entry into force or anytime. For example, the Comprehensive Nuclear Test ban Treaty provides for accession after its entry into force. Many environmental treaties provide for accession following the closing for signature.
States may provisionally apply a treaty (Provisional Application):
Treaty must provide for it;
Either before or after entry into force;
Unilateral undertaking by a State to give effect to the treaty obligations provisionally;
State may terminate provisuional application at any time unless treaty provides otherwise;
Even after entry into force, provisional application may continue among States which have not yet ratified, etc.
Eg: International Coffee Agreement 2001.

15. 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.
1.Example of the former Czechoslovakia and Yugoslavia where new States chose to succeed to many of the treaties previous applied to their territories by Czechoslovakia and Yugoslavia (CLEAN SLATE DOCTRINE);
2. Also former Soviet Republics, except that the Russian Federation did not succeed but continued the application of treaties concluded by the Soviet Union.

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

17. Consent to be Bound Basic requirements for a valid instrument
Identify treaty
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
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;
Dated
Declaration of undertaking evidences a State’s intention to be bound at international law.
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;

18. 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?

19. Answer to Problem 2-A
Amendment is open for “Acceptance” by States that are party to the Convention;
Amendment is identified;
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.

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

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

22. 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.
Often such declarations must be made upon ratification, acceptance, approval or accession.
1. Look at provisions of the treaty.

23. Consent to be Bound Optional Declarations
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.
E.g.: Article 36, paragraph 2 of the Statute of the ICJ recognizing as compulsory the jurisdiction of the Court.
1. Optional declarations are binding.

24. Consent to be Bound Mandatory Declarations
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.
1. If the instrument does not contain such an instrument, it cannot be accepted in deposit.

25. Consent to be Bound Notifications
Notifications typically provide information as required under a treaty.
Distinction between declarations and notifications is not always made.
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).
Not legally binding;
Do not need to be signed;
May be mandatory, but if not submitted will not hold up deposit of an otherwise valid instrument.

26. Consent to be Bound Notifications
E.g.: International Convention for the Suppression of Terrorist Bombings
Article 6(2) – Same notification as above.
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. 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 (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
*Notifications are often mandatory at the time of signature or deposit of instrument of ratification, etc. If notifications not present in an otherwise valid instrument, such an instrument will be deposited.

27. Consent to be Bound Reservations
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.
Must be done upon signature or deposit. If done upon signature must be confirmed upon ratification (exceptions).
Modification/Withdrawal
1.If a reservation is received following a valid deposit, it will be circulated to all States and if there are no objections within one year, it will be accepted in deposit.
2. Modifications and withdrawals must be signed as well.

28. Consent to be Bound Reservations
Treaties silent as to reservations (Human Rights treaties).
Certain reservations allowed/prohibited.
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).

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

30. Consent to be Bound Review
Signatory Ratification, Acceptance or Approval
Non-signatory Accession
Conditions for Accession?
Declarations/Notifications?
Reservations?

31. 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 a legal officer in the Treaty Section and have just been handed an instrument. What do you advise?

32. 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 subject to ratification and is open for accession by any State;
The OP is specified;
Declaration of undertaking present;
Valid signature and date;
But – Missing a mandatory declaration.

33. 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?

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

35. 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 to the Treaty Section. What do you advise?

36. 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);
State C can succeed possibly or accede to Convention;
It can then accede to the Protocol;
Instrument is valid in all respects.

37. Deposit of Instruments Place and Method
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;
By mail, by facsimile or by .
Instruments are not deposited if lodged with UNOG, for example;
Preferably if instruments are hand-delivered, mailed, faxed or ed directly to the Treaty Section;
Faxes accepted as long as they reproduce the signed original and with the understanding that the original will be transmitted without delay;
accepted only if scanned image of signed instrument attached to the .

38. Deposit of Instruments Place and Methods
Appointment for deposit in the Treaty Section
Facsimile No: (212)
Phone No: (212)
Treaty Events
1. President of Switzerland at Focus 2003 Treaty Event

39. 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;
Deposit will produce its effect in accordance with provisions of a treaty.
1. Treaty may specify that it will eif for the State 30 days after the date of deposit.

40. Final Clauses Entry into Force
Treaties enter into force in accordance with their provisions:
Upon a certain number of States depositing instruments of ratification;
A specific time after a certain number of States have deposited instruments of ratification;
Upon a certain percentage, proportion or category of States depositing instruments of ratification;
On a specific date.
UNCTOC and its 3 Protocols enter into force on the 90th day after the date of deposit of the 40th instrument of ratification, etc.
2. Kyoto Protocol – 55 parties included in annex I which accounted for at least 55% of the total dioxide emissions for 1990…)
3. Provisional entry into force:
Pursuant to provisions of a treaty;
Treaty not in force definitevely;
Enables States that are ready to implement the obligations under a treaty to do so among themselves without waiting for the conditions to be met for definitive entry into force;
Once treaty enters into force provisionally, it creates obligations for parties that agreed to bring it into force in that manner;
Terminates upon definitive entry into force.
4. E.g.: International Coffee Agreement, 2001.

41. Final Clauses Amendments
A treaty may be amended in accordance with its own provisions or in accordance with VCLT, 1969;
A treaty can only be amended if it has entered into force;
1.Article 40 of VCLT;
When looking at a treaty, you want to see if there have been any amendments or corrections;

42. Final Clauses Amendment Procedures
Proposal of amendments
Proposals of amendments made by a State Party and circulated by the relevant secretariat of the treaty
Adoption of amendments
Amendments adopted by States Parties at conference (consensus/majority vote)
Circulated by the depositary
Adopted amendments circulated by depositary for formal acceptance
1. E.g.: Vienna Convention (Ozone), Montreal Protocol, Stockholm Convention, etc.)

43. Final Clauses Amendment Procedures
Proposal of amendments
Circulated by the depositary
Adopted by a two-thirds majority or deemed adopted if no contracting party objects within specified period following date of circulation (11-B-16)
Enter into force for all contracting parties.
1. (E.g.: WHO, IMO, Wheeled Vehicle Equipment and Parts Agreement)

44. Final Clauses Entry into Force of Amendments
Upon certain number of States depositing instruments of consent to be bound with depositary;
A specific time after certain number of States deposited instruments of consent to be bound;
Upon certain percentage, proportion or category of States depositing instruments of consent to be bound;
On a specific date;
No objection within a specified time frame and deemed adopted. Entry into force on date of adoption.
1. Parties to “parent” treaty counted at the time of deposit of the acceptance of the amendment (moving target), if not otherwise specified.

45. Final Clauses Legal Implications of Amendments
In accordance with a treaty’s provisions, an amendment may, upon its entry into force, bind:
Only those States that formally accepted the amendment (results in two legal regimes); or
All States parties to the treaty (WHO, IMO, 11-B-16).
Where a State becomes party to a treaty which has been amended, it becomes party to the treaty as amended, unless otherwise indicated (see article 40(5)(a) VCLT 1969).
The State is also a party to the unamended treaty in its relation to States parties to the unamended treaty.
1. Protocol II, as amended – CWC.

46. Final Clauses Withdrawal and Denunciation
Pursuant to the provisions of a treaty or
With the consent of all parties after consultation with other contracting States
Typically 12 months notice required
Art. 54, VCLT covers withdrawal and denunciation.
2. To withdraw or denounce, a formal signed instrument is required.

47. Final Clauses Withdrawal and Denunciation
If no provisions regarding withdrawal or denunciation, treaty NOT subject to unilateral withdrawal or denunciation unless
Proven that parties intended possibility of withdrawal/denunciation; or
Right of withdrawal/denunciation implied by nature of treaty
States wishing to invoke above carry burden of proof
At least 12 months notice.
1. Art. 56 VCLT, 1969.

48. Final Clauses Termination
Pursuant to provisions of a treaty;
By consent of all parties after consultation with other contracting States;
By subsequent treaty to which all parties of former treaty are also party.
1. Articles 54 and 59, VCLT)

49. 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.