Presentation on theme: "Under Article 102 of the UN Charter"— Presentation transcript:
1 Under Article 102 of the UN Charter RegistrationUnder Article 102 of the UN Charter
2 Agenda Origins and Policy Objective of Article 102 Legal Implications of Article 102What is a treaty?Registration RequirementsPublication
3 Article 102: Origins and Policy Objective 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.Objective is to ensure that all treaties remain in the public domain and thus assist in eliminating secret diplomacy.Charter of UN was drafted in aftermath of WWII. At that time, secret diplomacy was believed to be a major cause of international instability.
4 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.
5 Legal Implications of Article 102 Each Member State has a legal obligation to register all international agreements/treaties concluded after the coming into force of the Charter.This obligation does not preclude international organizations with treaty-making capacity or non-Member States from submitting for registration treaties entered into with Member States.Secretariat is mandated to publish all agreements registered.
6 Legal Implications of Article 102 Sanctions Registration is the prerequisite for a treaty or international agreement to be capable of being invoked before the ICJ or any other UN organ.Applies only to the parties of an unregistered agreement.Third parties can invoke the treaty;ICJ has not dealt with this issue.
7 Important NoteRegistration does not imply a judgment by the Secretariat on the nature of the instrument, the status of a party, or any similar question.Secretariat’s action does not confer on the instrument the status of a treaty/international agreement if it does not already have that status.Secretariat’s action does not confer on a party a status which it would not otherwise have.
8 SummaryMember State must submit for registration all international agreements/treaties;Secretariat must publish all registered agreements;Parties to a treaty may not invoke that treaty before the ICJ or other UN body unless such treaty is registered.
9 Treaties and International Agreements? UN Charter and Regulations: No definitionArticle 1 of the Regulations to give effect to Article 102 (GA 1946) provides guidance on what comprises a treaty by adding the phrase: “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.Terms “treaty” and “international agreement” have not been defined in the Charter or in the Regulations, the Secretariat follows the principle of respecting the position of Member States submitting an instrument for registration that insofar as that party is concerned the instrument is a treaty or international agreement within the meaning of article However, the Secretariat examines each instrument to satisfy itself that it, prima facie, constitutes a treaty.
10 Types of treaties subject to registration Bilateral Treaties;Multilateral Treaties;Subsequent Actions;Unilateral legally binding undertakings:e.g. Acceptance of ICJ’s Compulsory Jurisdiction (Article 36(2) of the ICJ Statute)e.g. Suez Canal Declaration by Egypt:Registered in 1957Egypt considered declaration binding instrumentSeveral states may constitute 1 partyE.g. Europe Agreement establishing an association between theEuropean Communities and their Member States, of the one part,and the Czech Republic, of the other part.
11 “Whatever its form and descriptive name” TreatyConventionExchange of notes/lettersProtocolMOUMinutesUnilateral Declaration
12 Treaty Characteristics Title and form of a document submitted to Secretariat for registration are less important than its content in determining whether it is a treaty.A treaty must be concluded between at least two parties possessing treaty-making capacity (E.g., Sovereign State/international organization with treaty-making capacity).Intention to create legal obligations at international law.TREATY-MAKING CAPACITY: Many international organizations established by treaty have been specifically ir implicitly conferred treaty-making capacity. Similiarly, some treaties recognize the treaty-making capacity of certain international organizations such as the European Community. However, an international entity established by treaty may not necessarily have the capacity to conclude treaties.LEGAL OBLIGATIONS: A treaty must impose on the parties legal obligations binding under international law, as opposed to mere political commitments. An agreement governed by domestic law is not a treaty subject to registration.
13 Treaty-Making Capacity At least two parties- Sovereign states- Intergovernmental organizationsNo capacity:Non-state entitiesSecretariat is guided by GA/SC resolutions
14 Summary Treaty/International Agreement Parties whatever its form and descriptive namePartiestreaty-making capacity on international planeintention to create obligations at international law
15 Registration with the Secretariat Treaties of which at least one party is a UN Member may be registered with the Secretariat provided that the treaty has:Entered into force between at least 2 of the parties, andOther requirements for registration are met.
16 Filing and RecordingAgreements not subject to registration are voluntarily filed and recorded:UN and non-Member States;UN and specialized agencies or international organizations;Specialized agencies and non-Member States;Two or more specialized agencies;Specialized Agencies and international organizations;Other cases.Other cases: (1) Treaties transmitted by a Member of the UN which were entered into before the coming into force of the Charter and which were not included in treaty series of League of Nations.(2) Treaties transmitted by a party not a Member of UN, which were entered into before or after the coming into force of Charter and which were not included in treaty series of League of nations.
17 Ex officio registration by UN Every treaty subject to registration and to which the UN is a party shall be registered unilaterally by the UN (ex officio);UN registers subsequent actions ex officio as well;SG as depositary of a multilateral treaty also registers ex officio the treaty and its subsequent actions after the treaty has entered into force.
18 Registration Requirements Regulations to give effect to Article 102:(1) Treaty/International Agreement (Article 102)(2) Certifying Statement(3) Copy of treaty(4) Date of entry into force(5) Method of entry into force(6) Place and date of conclusion
19 Registration Requirements Regulations require that a party registering treaty certify that “the text is a true and complete copy thereof and includes all reservations/declarations made by the parties thereto”Certifying Statement must include:Full titleDate and place of conclusionDate and method of EIFAll authentic languagesSubmission must be complete:- E.g., authentic texts, protocols, annexes, mapsSecretariat requires that all enclosures such as protocols, exchanges of notes, authentic texts, annexes, etc. mentioned in the text of the treaty as forming an integral part thereof are appended to the copy transmitted for registration. If a treaty relates in a material way to a prior treaty which has not been registered, that treaty cannot be registered until the prior treaty has been registered. For example, the treaty in question may terminate a prior treaty. In order to terminate such a treaty, it must be registered.
20 Registration Requirements Legible copy of treaty/international agreement:One certified and complete copy of all authentic texts, and two additional copies, or one electronic copy.Parent agreement or agreements incorporated by reference must already be registeredDate of effect of registration is the date of receipt by Secretariat of the complete submission
21 Communications by Secretariat If successful: Submitter receives a certificate ofregistrationIf unsuccessful: Submitter requested to submit missing information/clarification:Authentic languagesEIF informationMissing annexes, protocols, etc.
23 Summary Documentation complete Certifying statement correct Electronic copy/translationsAgreement registered and published
24 Publication Monthly Statement Publication in United Nations Treaty SeriesPublication Obligation:Article 12 of the Regulations to give effect to Article 102 (see Treaty Handbook p. 32)Modified by A/153 of15 December 1997
25 Limited Publication Policy Exceptions to publication in extenso:Assistance/cooperation agreements of limited scope: financial, commercial, administrative or technical matterse.g. project agreements, World Bank bilateral financial agreementsAgreements relating to the organization of conferences, seminars or meetingsAgreements that are to be published elsewhereE.g. IAEA
26 Limited Publication Policy Lengthy lists of products attached to trade agreementsAgreements of the European Communities are published only in English and FrenchSource: Article 12(2) of the GA regulations to give effect to Article 102 of the UN Charter
27 United Nations Treaty Series Published in a single series beginning in 1946All integral elements of an agreement including protocols, agreed minutes, attachments and maps
28 United Nations Treaty Series Texts of agreements registered and filed and recorded with the SecretariatAll languages of the registered agreementsOver 140 languagesTranslations into English and French
29 UNTS on the Internet http://untreaty.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 treatiesFacility to view, save and print the full texts of treaties.Full texts of multilateral treaties deposited with the Secretary-General awaiting publication in the UNTS1. In authentic languages and Eng and French. 2. Registered and filed and recorded up to May 1998.
30 Requirements for Publication Electronic copy (G.A. Res. A/RES/51/158 of 10 Jan. 97)Diskette or CD-ROMCourtesy translation in any of the six official languages (preferably English/French)Clean, legible hard copies.Secretariat strongly encourages parties to submit electronic copies and translations to facilitate the registration and publication process.