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Art.42 Signature

Ilias Bantekas

From: The UN Convention on the Rights of Persons with Disabilities: A Commentary

Edited By: Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
01 November 2018
ISBN:
9780198810667

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

Subject(s):
Disability — Jurisdiction

(p. 1150) Article 42  Signature

The present Convention shall be open for signature by all States and by regional integration organizations at United Nations Headquarters in New York as of 30 March 2007.

1.  Introduction

Multilateral treaties, especially those such as the CRPD, that are adopted after years of negotiation, are opened for signature either to all states or only those states that participated in the negotiations and the final conference.1 Signature clauses are typically distinct from accession2 and ratification clauses given their bifurcated legal nature and their distinct legal effects. Multilateral treaties undergo a three-tier process: a) negotiation/discussion; b) signature of final text and; c) ratification, which is further distinguished by the deposit of an instrument of ratification and the adoption of implementing legislation at the domestic level.3 By September 2017 there were approximately 175 ratifications and twelve signatories to the CRPD.4

2.  Background and Travaux Préparatoires

Up until the seventh session there was almost no discussion on the CRPD’s final clauses. The Ad Hoc Committee took a specific decision to delay consideration of the final clauses (among other articles) until later on in the process of the Convention’s negotiation. In the seventh session the Chairperson suggested modelling all final clauses in the CRPD after the final clauses in the Convention on the Rights of Children (CRC) and the (p. 1151) Convention on the Elimination of Discrimination against Women (CEDAW).5 During the seventh session the UN Office of the High Commissioner for Human Rights (OHCHR) submitted a document on the final provisions of the CRPD following an invitation from the Chairperson of the Ad Hoc Committee. The OHCHR recommended two options, one encompassing ‘all states’ and another based on article 38(1) of the Convention for the Protection of All Persons from Enforced Disappearances (CED), which rendered the CRPD open for signature only to UN member states.6 The UN’s Office of Legal Affairs (OLA) disagreed with the latter option and suggested that the Convention should not be opened for signature immediately following its adoption:

as the preparation of the authentic text and the certified true copies, and the distribution of the certified true copies may take up to six weeks. These are functions required to be performed by the depositary. Our experience suggests too many difficulties and the waste of resources where a different approach is adopted.7

None of the four drafts of the final session of the Ad Hoc Committee made any changes to the current version of article 42 CRPD. During the seventh session, the EU recommended the insertion of regional international organizations as signatories,8 which was ultimately incorporated in the final text. In all the previous sessions there is no discussion of the issue of signatures, whether in respect of states or other non-state actors.

3.  ‘Signature’ of a Treaty

One should distinguish between ‘signing’9 and ‘ratifying’10 a treaty. In practice, states sign the text of a newly agreed treaty without necessarily indicating by the mere act of signing that they also wish to be bound by the treaty in question.11 An intention to be bound is typically expressed through a subsequent act of ratification, acceptance, or approval.12 Even so, a treaty may provide that a country is considered bound by the signature of its representative in two distinct ways, namely: a) ad referendum and; b) by way of a ‘definitive signature’. An ad referendum signature is conditional upon its subsequent official confirmation by the state. As a result, it becomes definitive once confirmed by the responsible organ. A ‘definitive’ signature, on the other hand, establishes the consent of the state to be bound by the treaty without further action.13 Definitive signatures are available in respect of many bilateral treaties as well as those (few) multilateral treaties that are not subject to ratification, acceptance or approval procedures. The norm, however, is reflected in article 10(1)(b) VCLT, which stipulates that in the absence of a specified procedure, the (p. 1152) authentication of a treaty’s text (as being definite) is achieved ‘by the signature, signature ad referendum or initialing by the representatives of those states of the text of the treaty or of the Final Act of a conference incorporating the text’. This non-binding signature is known as a ‘simple signature’.14 Article 42 CRPD clearly requires a ‘simple’ signature, given that article 43 CRPD envisages a process of ratification by participating states.

3.1  Signature by Regional International Organizations

It is not disputed in theory or practice that international organizations may become signatories to treaties, where a treaty so allows.15 In this event, the treaty in question will typically set out the criteria required. In the case at hand, article 42 CRPD refers to regional integration organizations and not international organizations in general.16 Article 44(1) CRPD provides a definition of regional integration organization and this will be analysed in the pertinent chapter to this volume.17 According to the Final Clauses Handbook, the term regional integration organization:

encompasses two key elements: the grouping of states in a certain region for the realization of common purposes and the transfer of competencies relating to those common purposes from the members of the regional economic integration organization to the organization. The term regional economic integration organization mainly refers to the European Communities.18

Article 42 CRPD does not distinguish between the signature of a state and that of a regional integration organization. While states must seek formal approval of treaties they have signed through their parliamentary bodies in accordance with their constitutional procedures, such a two-step procedure may seem redundant for international organizations. Customary international law, however, suggests that just like state entities, international organizations may apply a two-step procedure in their adoption of treaties.19 Article 43 CRPD, which discusses consent to be bound by the CRPD, distinguishes between ratification (for states) and ‘formal confirmation’20 by signatory organizations, thus clearly suggesting that the signing of the CRPD by regional intergration organizations is ‘simple’ as is the case with states. No doubt, the pertinent bodies of international organizations (eg internal courts, assemblies) may ultimately decide whether accession (formal confirmation) is in the interests of the organization.21 The EU signed the Convention on 30 March 2007 alongside many other states. The CRPD entered into force for the EU on 22 January 2011, (p. 1153) following the adoption of Council Decision 2010/48/EC22 and the subsequent deposit of the instrument of ratification to the UN Secretary-General.23 The Final Clauses Handbook refers to the powers exercised by the EU over its member states as follows:

[The EU] has the capacity to bind its members at the level of international law and to ensure that the provisions of treaties are implemented at the domestic level in those areas that its member States have transferred competence. It also has the power to enact legislation to ensure that its obligations under a treaty are implemented without additional approvals by the legislatures of its member States.24

By late 2017 the EU had not yet concluded the CRPD Optional Protocol,25 despite the fact that twenty-three member states had signed and twenty-one had ratified it.

4.  Effect of Signature

The ‘simple’ signing of a treaty produces three particular legal effects, namely: a) that the text is final and authentic; b) that the signatory may enter into an interpretative declaration, if not specifically precluded by the treaty and; c) that a state is obliged to refrain from acts which would defeat the object and purpose of the treaty it has signed ‘until it shall have made its intention clear not to become a party to the treaty’.26 As a result, although a simple signature does not bind the signatory, within the framework of the UN it does reflect the expression of the signatory to take steps to become a party in the future.27 In the particular circumstances of the CRPD no signatory state has detracted its signature28 with the intention of taking measures that would defeat the object and purpose of the CRPD.

(p. 1154) As far as interpretative declarations upon signature are concerned, there were several in the context of the CRPD. Some dealt with territorial and jurisdictional matters. Belgium, for example, declared that:

This signature is equally binding on the French community, the Flemish community, the German-speaking community, the Wallone region, the Flemish region and the region of the capital-Brussels.

Egypt, on the other hand, entered into an interpretative declaration pertaining to a substantive right under the Convention. It stipulated that with regard to article 12(2) CRPD:

persons with disabilities enjoy the capacity to acquire rights and assume legal responsibility (‘ahliyyat al-wujub) but not the capacity to perform (‘ahliyyat al-’ada’), under Egyptian law.29

This is effectively a reservation because it serves to exclude for Egypt the legal effect stipulated in article 12(2) CRPD. As a result, it should have been entered following ratification of the Convention. States routinely try to disguise reservations as interpretative declarations in order to avoid formal objection by other member states.

5.  ‘all states’

The decision to open the CRPD to ‘all states’ for signature is known as the ‘all states formula’.30 The other option is to open a convention for signature only to UN member states. The advantage of the latter is that the UN Secretary-General as depositary can easily assess whether an aspiring signatory is, or is not, a party to the UN. On the contrary, the ‘all states’ formula provides the depositary with some degree of diplomatic controversy, as the Secretariat will have to take the political decision as to whether an entity, that is not otherwise a party to the UN, satisfies the criteria for statehood.31 Although one would have thought that since one of the primary aims of the CRPD is to protect as many disabled persons as possible, political/territorial questions would be of secondary importance, especially in respect of entities lacking formal statehood. This is not the case, however. UN practice clearly demonstrates that the Secretary-General,32 in his function as depositary, will not allow states to sign or ratify the CRPD if they do not fall within the so-called ‘Vienna formula’.33 This explains the existence of a Palestinian signature, because despite significant dissent, Palestine is a member of other (p. 1155) UN specialized agencies.34 Palestine, in fact, proceeded to ratify the CRPD without first signing it, through what is known as an act of accession.35

In theory, there is nothing preventing the COSP of the CRPD from making such political determinations and in this manner effectively either bypassing this particular function of the depositary or directly dismissing it by means of a decision. Unlike the UN, UNICEF, or the ICC, the CRPD is not an international organization and the COSP does not possess the role of a true assembly. So, in practice, it is unlikely to engage with such matters.

Mutatis mutandis, the UN Secretary-General, as depositary will have to assess whether an international organization aspiring to membership satisfies the criteria of article 44(1) CRPD. So far, no regional integration organization has been rejected and the only one that has indicated its willingness for membership (and has in fact signed the Convention) is the European Union.

5.1  Indefinite Signature Duration

Those multilateral treaties whose chief aim is to attract the widest possible participation, such as human rights treaties, remain open for signature indefinitely.36 This is the case with article 42 CRPD, which was opened for signature indefinitely since 30 March 2007. This is not, however, the norm, as the practice of treaties adopted within the UN is to allow only a specified period within which interested states may append their signature.37 In such cases, following the expiration of the deadline for signatures, aspiring states can no longer authenticate the final text through their signature. Their only option remains accession to the treaty in question. Accession possesses the advantage of bypassing the political sensitivities associated with definitive signature, since the executive can first secure legislative/parliamentary ascent before proceeding to accede to the treaty. Accession further allows entities not universally recognized as having attained statehood to bypass pertinent political hurdles, as has been the case with Palestinian accession to fifteen multilateral treaties on 1 April 2014. However, the key disadvantage of accession is that the acceding state does not participate in the negotiation and adoption of the treaty.

Footnotes:

1  Exceptionally, the treaty may specify other entities as potential signatories, such as self-governed territories—see UN Office of Legal Affairs (Treaty Section), Final Clauses of Multilateral Treaties: Handbook (2003) 12.

2  See UN, Treaty Handbook (UN 2012) 10.

3  See Richard Gardiner, Treaty Interpretation (2nd edn, OUP 2015) ch 2.

4  Data on signatures is available at: <http://www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDIndex.aspx>.

5  Letter dated 7 October 2005 from the Chairman to all Members of the Committee UN Doc A/AC265/2006/1 (14 October 2005) para 10 ; see for a comparison Art 46 CRC; Art 86(1), first sentence, CMW.

6  ibid.

7  Draft Final Provisions for the Disability Convention, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7bkgrndconv.htm>.

8  EU Position, 30 January 2006, available at: <http://www.un.org/esa/socdev/enable/rights/ahc7eu.htm>.

9  Treaty Handbook (n 2) 5–6.

10  ibid 8–10.

11  Martin A Rogoff, ‘The International Legal Obligations of Signatories to an Unratified Treaty’ (1980) 32 Maine L Rev 263, 266–67.

12  This notwithstanding, Art 18(a) VCLT makes it clear that upon signing a treaty and until such time as the state in question ratifies or declares its intention not to ratify, it shall not act in a way that defeats the object and purpose of the treaty. Hence, the act of signing does carry certain obligations under international law.

13  Treaty Handbook (n 2) 6.

14  ibid 5.

15  Final Clauses Handbook (n 1) 20–21.

16  For an account of other regional integration organizations in the Americas, see María BO Giupponi, Rethinking Free Trade, Economic Integration and Human Rights in the Americas (Hart 2017).

17  The chapter in this book on Art 44 CRPD discusses the shared or exclusive competence of regional integration organizations—see Final Clauses Handbook (n 1) 24–26.

18  Final Clauses Handbook (n 1) 22.

19  Arts 10–12 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations suggest that the same principles enunciated in the VCLT apply mutatis mutandis in respect of treaties entered into by international organizations.

20  Art 2(1)(b)(bis) of the 1986 Vienna Convention expressly states that the term ‘formal confirmation’ is the equivalent of ratification in respect of international organizations.

21  In its Opinion 2/13, re Accession to the ECHR (CJEU) (2014), the CJEU was critical of the EU’s draft accession agreement to the European Convention on Human Rights (ECHR) because, inter alia, in its opinion it did not ensure the primacy of EU law in relation to the possibilities conferred by Art 53 of the EU Charter of Fundamental Rights as regards stronger fundamental rights in member states’ constitutions.

22  Council Decision 2010/48/EC (26 November 2009), concerning the conclusion by the EU of the UN CRPD, OJ L 23 (27 January 2010) 35–61.

23  The CRPD is binding on the EU pursuant to Art 216 TFEU. However, each member state must ratify the CRPD in its independent capacity because it is a mixed agreement whereby competence lies with both the EU and member states. Their respective commitments are spelt out in a declaration submitted under Art 44(1) CRPD, which shall be updated as the EU acquis evolves. See Declaration concerning the competence of the EC with regard to matters governed by the CRPD, Annex II to Council Decision 2010/48/EC, OJ L 23 (27 January 2010) 55–60. A dedicated Code of Conduct between the Council, member states and the Commission setting out internal arrangements for the implementation by and representation of the EU relating to the CRPD provides details of the internal coordination arrangements required; OJ C 340 (15 December 2010) 11–15.

24  Final Clauses Handbook (n 1) 22.

25  It should be pointed out that the Commission had made a favourable proposal as early as 2008; see Proposal for a Council Decision concerning the Conclusion of the Optional Protocol to the CRPD, COM (2008) 530–2 (Corr) (2 September 2008). The EU Parliament adopted a legislative resolution in 2009 approving the proposal and called on it and member states to periodically report on the status of implementation of the Protocol; T6-0313/2009.

26  Art 18(1)(a) VCLT—Art 18 is now viewed as having crystallized into customary law; see Paolo Palchetti, ‘Article 18 of the 1969 Vienna Convention: A Vague and Ineffective Obligation or a Useful Means of Strengthening Legal Cooperation’? in Enzo Cannizarro (ed), The Law of Treaties Beyond the Vienna Convention (OUP 2011) 25, 26.

27  Final Clauses Handbook (n 1) 32.

28  Although signature detraction is rare, it does happen: the USA detracted its signature from the Statute of the International Criminal Court (ICC) shortly after it had signed it—see Edward T Swaine, ‘Unsigning’ (2003) 55 Stan L Rev 2061.

30  UN Office for Legal Affairs, ‘Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties’ UN Doc ST/LEG/7/Rev 1 (1999) 22; Final Clauses Handbook (n 1) 12–15; see also commentary to Art 43 CRPD which provides for the ‘any state’ formula in respect of accession to the CRPD. The two are functionally the same.

31  Final Clauses Handbook (n 1) 14.

32  ibid 14–15.

33  However, some degree of caution is required. The Summary of Practice of the Secretary-General as Depositary (n 30) 23, suggests that in past practice the Secretariat would seek ‘explicit directives’ from the General Assembly on the ground that such a determination fell ‘outside his competence’. He would only decide on his own initiative if the state in question fell within the ‘Vienna formula’, that is, if it were a party to the UN, a specialized agency or the ICJ Statute. The subsequent practice of the General Assembly has been sparse, but it is now firmly understood, especially in the Summary of Practice, ibid 29, that the chief criterion is conformity with the Vienna formula; on the ‘Vienna formula’ see also Final Clauses Handbook (n 1) 15–20.

34  Palestine acceded to a membership in UNESCO in 2011 and the International Criminal Court in 2015; in 2012 UNGA Res 67/19 (29 November 2012) accorded Palestine ‘non-member observer state’ status in the UN, with 138 votes in favour, nine against and forty-one abstentions. Despite the matter being frozen at the level of the Security Council, the UN now refers to the State of Palestine and as such it may accede or ratify treaties under the aegis of the UN.

35  On the matter of participation by entities other than states and international organizations see Final Clauses Handbook (n 1) 27.

36  Summary of Practice of the Secretary-General as Depositary (n 30) 34.

37  Final Clauses Handbook (n 1) 30; see eg Art 28 of the UN Convention on Jurisdictional Immunities of States and their Property.