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s.VI Treaty Clauses, Initial Decisions on Treaty-Making

Duncan B Hollis

From: The Oxford Guide to Treaties (1st Edition)

Edited By: Duncan B. Hollis

A newer edition of The Oxford Guide to Treaties is available. Latest edition (2 ed.)
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 21 May 2024

Subject(s):
Object & purpose (treaty interpretation and) — Specific treaties — NGOs (Non-Governmental Organizations) — International organizations — Subjects of international law

(p. 655) Initial Decisions on Treaty-Making

1.  Distinguishing Political Commitments from Treaties

As Chapter 1 explains, the dominant view is that States, IOs, and other qualified subjects make treaties when they manifest their intent to conclude an agreement governed by international law, whether in writing or some other recorded form.7 But, as Chapter 2 details, treaties are not the only form of agreement international actors may conclude; they may opt instead to conclude a political commitment, where they intend their agreement to have exclusively political or moral (and not legal) force.8 Discerning what the participants intended—namely, a treaty or a political commitment—is not always easy. Many treaty texts make no mention that the parties intend to conclude one or that the agreement be governed by international law. In such cases, any manifestation of treaty intent rests on the terms used, the surrounding circumstances, or even a baseline presumption that inter-State agreements are treaties absent evidence to the contrary.

Agreement participants have, however, developed a variety of ways to manifest a contrary intent. Sometimes that intent is evidenced by the forum where the agreement is adopted (such as the G8 or OSCE) or the surrounding circumstances (eg the Copenhagen Accord).9 In other cases, however, participants may use a clause to signal their intentions. Some clauses declaim any intention that the commitment be legally binding; others affirmatively characterize the commitment as a political one. Clauses indicating that the agreement will not be registered (which the UN Charter requires for all treaties) are an alternative vehicle for indicating a political commitment. The ability of these clauses to definitively deny an agreement treaty status remains unresolved. Nevertheless, to the extent participants wish to make clear their non-treaty intentions at the outset, these types of clauses may offer the best available means for doing so.

(p. 656) A.  Explicitly not legally binding

  • •  Memorandum of Principles and Procedures between the Republic of Moldova and the State of North Carolina (USA) Concerning their Desire to Strengthen their Good Relations (2010) <http://www.secretary.state.nc.us/partnership/pdf/NC-Moldova%20Agreement%201-20-10.pdf>:

    1. A.  This Memorandum does not create any obligations that constitute a legally binding agreement under international law …

  • •  Memorandum of Understanding for the Conservation and Management of Shared Polar Bear Populations (US Department of Interior-Environment Canada) (2008) <http://graphics8.nytimes.com/packages/pdf/national/20080515polar_memo.pdf>:

    This Memorandum of Understanding is not legally binding and creates no legally binding obligations on the Participants.

  • •  Title, Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (1992) 31 ILM 882 (emphasis added).

B.  Explicitly politically binding

  • •  Title, Political Declaration, International Carbon Action Partnership (2007) <http://www.icapcarbonaction.com/index.php?option=com_content&view= article&id=12&Itemid=4> (emphasis added).

  • •  First Paragraph, Founding Act on Mutual Relations, Cooperation and Security (NATO) (1997) 36 ILM 1006:

    The North Atlantic Treaty Organization and its member States, on the one hand, and the Russian Federation, on the other hand, hereinafter referred to as NATO and Russia, based on an enduring political commitment undertaken at the highest political level, will build together a lasting and inclusive peace in the Euro-Atlantic area on the principles of democracy and cooperative security.

  • •  Paragraph 101, CSCE Document of the Stockholm Conference on Confidence- and Security-Building Measures and Disarmament in Europe (1986) 26 ILM 190:

    The measures adopted in this document are politically binding and will come into force on 1 January 1987.

C.  Not eligible for registration with the UN

2.  Object and Purpose

A treaty’s ‘object and purpose’ is an amorphous, but important, concept throughout the law of treaties. As Chapter 8 discusses, parties who sign a treaty subject to ratification are obliged not to defeat a treaty’s object and purpose. Reservations are only permissible where they are compatible with the treaty’s object and purpose, a mandate examined in Chapter 12. As explained in both Chapters 19 and 21, a treaty’s object and purpose is a significant component of the ‘crucible’ approach to treaty interpretation and plays an important role in reconciling different language texts as well. A multilateral treaty’s object and purpose restricts the scope of any treaty modification or suspension by only some of its parties.10 As Chapter 16 notes, moreover, a treaty’s object and purpose may limit when succession is possible.11 Finally, as examined in Chapter 23, the concept of ‘material breach’ involves violations of treaty provisions ‘essential to the accomplishment of the object or purpose of the treaty’.12

There is no fixed procedure for determining what a treaty’s object and purpose is (let alone whether it has the same meaning in each context it applies). The concept is so flexible as to risk indeterminacy on occasion.13 Indeed, as an interpretative (p. 658) matter, Article 31 of the VCLT presents a tautology where it would determine a treaty’s object and purpose in ‘light of its object and purpose’.14

On occasion, parties use treaty text to list one or more of its objects/objectives (the desired end result), its purpose(s) (its raison d’être), or both.15 The relevant language may be found in the preamble or a specific treaty clause. In certain cases, a treaty may purport to identify some overarching object or purpose not just for itself but for related agreements, such as Protocols to a Framework Convention. Caution is warranted, however, in treating any description of a treaty’s object or purpose as determinative. In most cases, the instrument as a whole must be considered. Nonetheless, these clauses are of value in such inquiries and warrant careful attention.

A.  Clauses listing a treaty’s objective(s)

  • •  Article 1, Stockholm Convention on Persistent Organic Pollutants (2001) 2256 UNTS 119:

    Mindful of the precautionary approach as set forth in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Convention is to protect human health and the environment from persistent organic pollutants.

  • •  Article 102, North American Free Trade Agreement (NAFTA) (1992) 32 ILM 612:

    1. 1.  The objectives of this Agreement, as elaborated more specifically through its principles and rules, including national treatment, most-favored-nation treatment and transparency, are to:

      1. a)  eliminate barriers to trade in, and facilitate the cross-border movement of, goods and services between the territories of the Parties;

      2. b)  promote conditions of fair competition in the free trade area;

      3. c)  increase substantially investment opportunities in the territories of the Parties;

      4. d)  provide adequate and effective protection and enforcement of intellectual property rights in each Party’s territory;

      5. e)  create effective procedures for the implementation and application of this Agreement, for its joint administration and for the resolution of disputes; and

      6. f)  establish a framework for further trilateral, regional and multilateral cooperation to expand and enhance the benefits of this Agreement.

    2. 2.  The Parties shall interpret and apply the provisions of this Agreement in the light of its objectives set out in paragraph 1 and in accordance with applicable rules of international law.

  • (p. 659) •  Article 2(1), UN Framework Convention on Climate Change (1992) 1771 UNTS 107:

    The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

  • •  Article 3, Convention for the Conservation of Southern Bluefin Tuna (1993) 1819 UNTS 359:

    The objective of this Convention is to ensure, through appropriate management, the conservation and optimum utilisation of southern bluefin tuna.

  • •  Article 1, Convention on the Civil Aspects of International Child Abduction (1980) 1343 UNTS 89:

    The objects of the present Convention are:

      1. (a)  to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

      2. (b)  to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

B.  Clauses listing a treaty’s purpose(s)

  • •  Article 1, UN Convention on the Rights of Persons with Disabilities (2006) 2515 UNTS 3:

    The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity …

  • •  Preamble, Agreement Concerning the Encouragement and Reciprocal Protection of Investments (China-Jamaica) (1994) <http://www.unctad.org/sections/dite/iia/docs/bits/china_jamaica.pdf>:

    The Government of the People’s Republic of China and the Government of Jamaica … Desiring to encourage, protect, and create favorable conditions for investment by investors of one Contracting Party in the territory of the other Contracting Party; Desiring to strengthen economic co-operation between both States on the basis of the principles of mutual respect, sovereign equality, and mutual benefit;

    Have agreed as follows: …

C.  Clauses indicative of a treaty’s object and purpose

  • •  Article 1, Agreement Concerning Cooperation To Suppress The Proliferation Of Weapons Of Mass Destruction, Their Delivery Systems, And Related Materials By Sea (Malta-US) (2007) <http://www.state.gov/t/isn/trty/81883.htm>:

    (p. 660)

    1. 1.  The object and purpose of this Agreement is to promote cooperation between the Parties to enable them to prevent the transportation by sea of items of proliferation concern.

  • •  Chapter 1, Articles 1–2, Agreement Establishing the Latin American Energy Organization (1973) 1000 UNTS 117:

    Article 1

    To establish a regional body which shall be called the “Latin American Energy Organization” (hereinafter referred to as the Organization or OLADE), with headquarters in the city of Quito, Ecuador.

    Article 2

    The Organization is an instrument for cooperation, coordination, and consultation, with its own juridical identity, whose fundamental purpose is the integration, protection, conservation, rational utilization, marketing, and defense of the energy resources of the Region.

3.  Participation Conditions for States

In the bilateral context, State participation in a treaty is largely subsumed into the question of whether the two States wish to make a treaty and at what level (government-to-government, agency-to-agency, etc) to do so.16 In the multilateral context, however, negotiating States may set conditions for participation. They may opt to pursue a ‘closed’ treaty, limiting participation only to those involved in the original negotiations and those they invite in by some agreed procedure. Or, they may open the treaty up to some number of other States based on certain qualifying conditions such as geography or participation in an activity. Most protocols limit participation to parties to the original treaty, but this is not legally required.

For treaties that aspire to universal membership, the so-called ‘Vienna formula’ became popular during the Cold War because it allowed for participation beyond UN General Assembly (UNGA) member States. Since 1973, the UNGA has had an understanding that the UN Secretary-General, as depositary, will follow UNGA practice (or seek its opinion) on questions of which entities constitute States.17 As a result, the so-called ‘all States’ formula now predominates for such multilateral treaties. For further discussion of treaty participation issues, see Chapter 7.

A.  Closed treaties

  • •  Preamble, Article XXVII–VIII, Amazon Cooperation Treaty (1978) 1202 UNTS 51:

    (p. 661) The Republics of Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela …

    RESOLVE to sign the following Treaty …

    ARTICLE XXVII. This Treaty shall remain in force for an unlimited period of time, and shall not be open to adherence.

    ARTICLE XXVIII. This Treaty shall be ratified by all the Contracting Parties and the instruments of ratification shall be deposited with the Government of the Federative Republic of Brazil …

B.  Participation by invitation

  • •  Article 16.1, Framework Agreement on a Multilateral Nuclear Environment Programme in the Russian Federation (2003) [2003] OJ L155/37:

    This Agreement shall be open for accession by any State, intergovernmental organization or regional economic integration organization being subject to public international law upon invitation by the MNEPR Committee.

  • •  Article 37, International Sugar Agreement (1992) 1703 UNTS 203:

    This Agreement shall be open for signature at the United Nations Headquarters from 1 May until 31 December 1992 by any Government invited to the United Nations Sugar Conference, 1992.

1.  Requiring a consensus of the parties

  • •  Articles 34–35(1)–(2), Convention on the Protection of the Marine Environment of the Baltic Sea (1992) 2099 UNTS 195:

    Article 34

    This Convention shall be open for signature in Helsinki from 9 April 1992 until 9 October 1992 by States and by the European Economic Community participating in the Diplomatic Conference on the Protection of the Marine Environment of the Baltic Sea Area held in Helsinki on 9 April 1992.

    Article 35

    1. 1.  This Convention shall be subject to ratification or approval.

    2. 2.  This Convention shall, after its entry into force, be open for accession by any other State or regional economic integration organization interested in fulfilling the aims and purposes of this Convention, provided that this State or organization is invited by all the Contracting Parties …

2.  Requiring a majority vote of the parties

  • •  Articles 29(1)–(2), Constitutive Act of the African Union (2000) 2158 UNTS 3:

    1. 1.  Any African State may, at any time after the entry into force of this Act, notify the Chairman of the Commission of its intention to accede to this Act and to be admitted as a member of the Union.

    2. (p. 662) 2.  The Chairman of the Commission shall, upon receipt of such notification, transmit copies thereof to all Member States. Admission shall be decided by a simple majority of the Member States. The decision of each Member State shall be transmitted to the Chairman of the Commission who shall, upon receipt of the required number of votes, communicate the decision to the State concerned.

3.  Requiring a majority of parties not to object

  • •  Articles 13–14, Agreement Establishing the International Organisation of Vine and Wine (2001) [2004] ATS 3:

    Article 13

    This Agreement shall be open for signature by all Member States of the International Vine and Wine Office until 31 July 2001. This Agreement shall be subject to acceptance, approval, ratification or accession.

    Article 14

    Any state not referred to in Article 13 of this Agreement may apply to become a member. Applications for membership shall be made directly to the O.I.V, with a copy to the Government of the French Republic, which shall notify signatories of, or Parties to the Agreement of such applications. The O.I.V shall provide information to its members concerning applications for membership and any observations made. Members have six months in which to inform the O.I.V of their opinion. The application shall be accepted if at the expiration of six months from the date of notification a majority of members has not opposed it. The depository shall notify the State of the outcome of its application. If the application is successful, the State concerned shall have twelve months within which to deposit its instrument of accession with the depository. States referred to in Article 13 that have not signed this Agreement within the given time limit may accede at any time.

C.  Conditional participation

1.  Open to States who engage in particular activity

  • •  Article 35(2), Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (2000) 40 ILM 277:

    After the entry into force of this Convention, the Contracting Parties may, by consensus, invite other States and regional economic integration organizations, whose nationals and fishing vessels wish to conduct fishing for highly migratory fish stocks in the Convention Area to accede to this Convention.

  • •  Paragraph 21, Constitution of the Association of Natural Rubber Producing Countries (1968) 1045 UNTS 173:

    The Constitution of the Association shall come into force definitely on such date as when at least four Governments of countries producing natural rubber have deposited instruments of [approval], acceptance or accession. Thereafter the Government of any country producing natural rubber which ratifies the Constitution of the Association and (p. 663) has deposited its instrument of approval, acceptance or accession shall become a Member of the Association.

2.  Participation limited to members of a specific organization

  • •  Article 17(1), WIPO Copyright Treaty (1996) 2186 UNTS 121:

    Any Member State of WIPO may become Party to this Treaty.

3.  Participation limited to States from within a specific region

  • •  Articles 18, 20, Inter-American Convention to Prevent and Punish Torture (1985) OAS Treaty Series No 67:

    Article 18

    This Convention is open to signature by the member states of the Organization of American States.

    Article 20

    This Convention is open to accession by any other American state …

  • •  Article 10(1), European Agreement Concerning the International Carriage of Dangerous Goods by Inland Waterways (2000) UN Doc ECE/TRANS/ADN/CONF/2000/CRP.10:

    Member States of the Economic Commission for Europe whose territory contains inland waterways, other than those forming a coastal route, which form part of the network of inland waterways of international importance as defined in the European Agreement on Main Inland Waterways of International Importance (AGN) may become Contracting Parties to this Agreement …

4.  Open to parties to an existing treaty

  • •  Article IX(1), COE Protocol amending the Convention on Mutual Administrative Assistance in Tax Matters (2010) CETS No 208:

    This Protocol shall be open for signature by the Signatories to the Convention. It is subject to ratification, acceptance or approval. A signatory may not ratify, accept or approve this Protocol unless it has previously or simultaneously ratified, accepted or approved the Convention …

5.  Participation based on acceptance of a political commitment

  • •  Article 38, Energy Charter Treaty (1994) 2080 UNTS 95:

    This Treaty shall be open for signature at Lisbon from 17 December 1994 to 16 June 1995 by the states and Regional Economic Integration Organizations which have signed the [European Energy] Charter.

(p. 664) 6.  Multiple bases for participation

  • •  Section XI, Article XI.1, Convention on the Recognition of Qualifications Concerning Higher Education in the European Region (1997) 2136 UNTS 3:

    This Convention shall be open for signature by:

      1. a.  the member States of the Council of Europe;

      2. b.  the member States of the UNESCO Europe Region;

      3. c.  any other signatory, contracting State or party to the European Convention of the Council of Europe and/or the UNESCO Convention on the Recognition of Studies, Diplomas and Degrees concerning Higher Education in the States belonging to the Europe Region, which have been invited to the Diplomatic Conference entrusted with the adoption of this Convention.

D.  Open treaties

1.  ‘All States’ formula

  • •  Articles 46–48, Convention on the Rights of the Child (1989) 1577 UNTS 3:

    Article 46

    The present Convention shall be open for signature by all States.

    Article 47

    The present Convention is subject to ratification …

    Article 48

    The present Convention shall remain open for accession by any State …

2.  The ‘Vienna formula’

  • •  Article 20, UN Framework Convention on Climate Change (1992) 1771 UNTS 107:

    This Convention shall be open for signature by States Members of the United Nations or of any of its specialized agencies or that are Parties to the Statute of the International Court of Justice …

3.  Protocol open to participation by ‘any State’

  • •  Article 9(2), Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000) 2173 UNTS 222:

    1. 2.  The present Protocol is subject to ratification and is open to accession by any State …

4.  Participation Conditions for Non-State Actors

Besides States, a number of non-State actors make treaties. Their ability to do so depends on: (a) the non-State actor having competence over the treaty’s subject matter and the authority to make a treaty on that subject; and (b) the willingness of (p. 665) the other party or parties to enter into treaty relations with it. As Chapter 3 explores, the treaty-making capacity of IOs is now well-established and has generated its own Vienna Convention. Today, most IO treaty-making is bilateral (such as cooperation, relationship, or headquarters agreements) where any question of IO participation is settled through the conclusion of the treaty itself.18 In contrast, in the multilateral context, many treaties involve matters where either the IO lacks the competence to perform or States are unwilling to allow the IO to become a party.19 Thus, many multilateral treaties limit participation to States only. In some cases, however, a clause may specifically authorize IO participation, with or without conditions.

Unlike IOs generally, one IO—the EU—does have extensive experience making both bilateral and multilateral treaties. Treaties allow (and condition) this participation in different ways. Many contain a so-called ‘REIO clause’, allowing ‘regional economic integration organizations’ that have competence over the treaty’s subject matter and an attendant treaty-making capacity to become parties. Some REIO clauses envision the REIO participating in lieu of its member States. Others contemplate shared competences among the REIO and its member States (a ‘mixed agreement’). Mixed agreements regularly include detailed provisions on the treaty’s legal effects given the division of competences between the organization and its member States. For some time, the European Community (EC) was the primary (if not the only) example of a REIO. The Treaty of Lisbon has since supplanted the EC with the EU, whose competence is not limited to economic matters. Thus, recent multilateral treaties have restyled their participation clauses to refer to a ‘Regional Integration Organization’ (RIO). Neither RIO nor REIO clauses are exclusive to the EU; nothing precludes an IO from invoking one if it actually possesses sufficient competence and treaty-making capacity to do so.20 At the same time, several recent treaties have moved away from the RIO/REIO clause model, opting to simply authorize EU participation specifically. Chapter 4 covers EU treaty law and practice in much more detail.

Beyond IOs and the EU, ‘other subjects of international law’ may make treaties, albeit in more exceptional circumstances. The same conditions of competence, capacity, and willingness to enter into a treaty apply. But, as Chapter 5 details, the actors involved are more diverse and include integral territorial units, external territories, insurgent groups, Special Administrative Regions (SARs), Associated States, and sui generis entities like Taiwan. As with IOs, most treaties involving (p. 666) ‘other subjects’ are bilateral without any specific clause(s) on participation.21 Occasionally, however, States may conclude treaties that contemplate treaty-making by non-State actors. More rarely, a multilateral treaty may employ various categories of entities (eg territories, fishing entities, customs unions) via which certain non-State actors may participate.

A.  Participation limited to States

  • •  Article 24(1), (3), International Convention for the Suppression of Acts of Nuclear Terrorism (2005) 2445 UNTS 89:

    1. 1.  This Convention shall be open for signature by all States from 14 September 2005 until 31 December 2006 at United Nations Headquarters in New York …

    2. 3.  This Convention shall be open to accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

B.  Participation by IOs

1.  Generally

  • •  Articles IV–VI, Agreement on the Establishment of the International Vaccine Institute (1996) 1979 UNTS 199:

    Article IV  Signature

    This Agreement shall be open for signature by all states and intergovernmental organizations at Headquarters of the United Nations, New York …

    Article V  Consent to be Bound

    This Agreement shall be subject to ratification, acceptance or approval by the signatory states and intergovernmental organizations referred to in Article IV.

    Article VI  Accession

    After the expiration of the period specified in Article IV, the present Agreement shall remain open for accession by any state or intergovernmental organization, contingent upon approval by the Board of Trustees of the Institute by simple majority.

2.  By invitation

  • •  Article 8, Agreement Establishing the International Organisation of Vine and Wine (2001) [2004] ATS 3:

    (p. 667) An international intergovernmental organisation may participate in or be a member of the O.I.V. and may help to fund the O.I.V. under conditions determined, on a case by case basis, by the General Assembly on a proposal from the Executive Committee.

3.  With specific competences

  • •  Article 26(1)(ii), Singapore Treaty on the Law of Trademarks (2006) <http://www.wipo.int/treaties/en/ip/singapore/singapore_treaty.html>:

    [Eligibility] The following entities may sign and, subject to paragraphs (2) and (3) and Article 28(1) and (3), become party to this Treaty …

    (ii) any intergovernmental organization which maintains an Office in which marks may be registered with effect in the territory in which the constituting treaty of the intergovernmental organization applies, in all its Member States or in those of its Member States which are designated for such purpose in the relevant application, provided that all the Member States of the intergovernmental organization are members of the Organization …

C.  EU participation

1.  As a qualified ‘intergovernmental organisation’

  • •  Article 17, WIPO Copyright Treaty (1996) 2186 UNTS 121:

    … The Assembly may decide to admit any intergovernmental organisation to become Party to this Treaty which declares that it is competent in respect of, and has its own legislation binding on all its Member States on, matters covered by this Treaty and that it has been duly authorised, in accordance with its internal procedures, to become Party to this Treaty.

    The European Community, having made the Declaration referred to in the preceding paragraph in the Diplomatic Conference that has adopted this Treaty, may become Party to this Treaty.

  • •  Annex IX, Articles 1–4, UN Convention on the Law of the Sea (1982) 1833 UNTS 3:

    Article 1  – Use of terms

    For the purposes of article 305 and of this Annex, ‘international organization’ means an intergovernmental organization constituted by States to which its member States have transferred competence over matters governed by this Convention, including the competence to enter into treaties in respect of those matters.

    Article 2  – Signature

    An international organization may sign this Convention if a majority of its member States are signatories of this Convention. At the time of signature an international organization shall make a declaration specifying the matters governed by this Convention in respect of which competence has been transferred to that organization by its member States which are signatories, and the nature and extent of that competence.

    (p. 668) Article 3  – Formal confirmation and accession

    1. 1.  An international organization may deposit its instrument of formal confirmation or of accession if a majority of its member States deposit or have deposited their instruments of ratification or accession.

    2. 2.  The instruments deposited by the international organization shall contain the undertakings and declarations required by articles 4 and 5 of this Annex.22

2.  As a REIO

  • •  Articles 2(a)–(b), 23–26, Stockholm Convention on Persistent Organic Pollutants (2001) 2256 UNTS 119:

    Article 2  – Definitions

    1. (a)  ‘Party’ means a State or regional economic integration organization that has consented to be bound by this Convention and for which the Convention is in force;

    2. (b)  ‘Regional economic integration organization’ means 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 and which has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to this Convention …

    Article 23  – Right to vote

    1. 1.  Each Party to this Convention shall have one vote, except as provided for in paragraph 2.

    2. 2.  A regional economic integration organization, on matters within its competence, shall exercise its right to vote with a number of votes equal to the number of its member States that are Parties to this Convention. Such an organization shall not exercise its right to vote if any of its member States exercises its right to vote, and vice versa.

    Article 24  – Signature

    This Convention shall be open for signature at Stockholm by all States and regional economic integration organizations on 23 May 2001, and at the United Nations Headquarters in New York from 24 May 2001 to 22 May 2002.

    Article 25  – Ratification, Acceptance, Approval or Accession

    1. 1.  This Convention shall be subject to ratification, acceptance or approval by States and by regional economic integration organizations. It shall be open for accession by States and by regional economic integration organizations from the day after the date on which the Convention is closed for signature. Instruments of ratification, acceptance, approval or accession shall be deposited with the depositary.

    2. 2.  Any regional economic integration organization that becomes a Party to this Convention without any of its member States being a Party shall be bound by all the obligations under the Convention. In the case of such organizations, one or more of whose member States is a Party to this Convention, the organization and its member States shall decide on their respective responsibilities for the performance of their (p. 669) obligations under the Convention. In such cases, the organization and the member States shall not be entitled to exercise rights under the Convention concurrently.

    3. 3.  In its instrument of ratification, acceptance, approval or accession, a regional economic integration organization shall declare the extent of its competence in respect of the matters governed by this Convention. Any such organization shall also inform the depositary, who shall in turn inform the Parties, of any relevant modification in the extent of its competence …

    Article 26  – Entry into force

    1. 1.  This Convention shall enter into force on the ninetieth day after the date of deposit of the fiftieth instrument of ratification, acceptance, approval or accession.

    2. 2.  For each State or regional economic integration organization that ratifies, accepts or approves this Convention or accedes thereto after the deposit of the fiftieth instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the ninetieth day after the date of deposit by such State or regional economic integration organization of its instrument of ratification, acceptance, approval or accession.

    3. 3.  For the purpose of paragraphs 1 and 2, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of that organization.

3.  As a REIO provided one member State also participates

  • •  Article 67(3), UN Convention Against Corruption (2003) 2349 UNTS 41:

    1. 3.  This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. A regional economic integration organization may deposit its instrument of ratification, acceptance or approval if at least one of its member States has done likewise. In that instrument of ratification, acceptance or approval, such organization shall declare the extent of its competence with respect to the matters governed by this Convention. Such organization shall also inform the depositary of any relevant modification in the extent of its competence.

4.  As a REIO in lieu of member States

  • •  Article XXVII 1(c), 2, Convention for the Strengthening of the Inter-American Tropical Tuna Commission (2003) <http://www.iattc.org/PDFFiles2/Antigua_Convention_Jun_2003.pdf>:

    1. 1.  This Convention shall be open for signature at Washington from November 14, 2003, until December 31, 2004, by …

      1. (c)  States and regional economic integration organizations which are not Parties to the 1949 Convention and whose vessels have fished for fish stocks covered by this Convention at any time during the four years preceding the adoption of this Convention and that participated in the negotiation of this Convention; and

    2. 2.  In relation to the regional economic integration organizations referred to in paragraph 1 of this Article, no member State of such organizations may sign this Convention unless it represents a territory which lies outside the territorial scope of the treaty establishing the organization and provided that such member State’s participation be limited to representing only the interests of that territory.

(p. 670) 5.  As a RIO

  • •  Articles 42–44, Convention on the Rights of Persons with Disabilities (2006) 2515 UNTS 3:

    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.

    Article 43  – Consent to be bound

    The present Convention shall be subject to ratification by signatory States and to formal confirmation by signatory regional integration organizations. It shall be open for accession by any State or regional integration organization which has not signed the Convention.

    Article 44  – Regional integration organizations

    1. 1.  ‘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.

    2. 2.  References to ‘States Parties’ in the present Convention shall apply to such organizations within the limits of their competence.

    3. 3.  For the purposes of article 45, paragraph 1 [on entry into force], and article 47, paragraphs 2 and 3 [on Amendments], any instrument deposited by a regional integration organization shall not be counted.

    4. 4.  Regional integration organizations, in matters within their competence, may exercise their right to vote in the Conference of States Parties, with a number of votes equal to the number of their member States that are Parties to this Convention. Such an organization shall not exercise its right to vote if any of its member States exercises its right, and vice versa.

6.  As the EU specifically

  • •  Article 75, COE Convention on preventing and combating violence against women and domestic violence (2011) CETS No 210:

    1. 1.  This Convention shall be open for signature by the member States of the Council of Europe, the non-member States which have participated in its elaboration and the European Union.

    2. 2.  This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

    3. 3.  This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which 10 signatories, including at least eight member States of the Council of Europe, have expressed their consent to be bound by the Convention in accordance with the provisions of paragraph 2.

    4. (p. 671) 4.  In respect of any State referred to in paragraph 1 or the European Union, which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of its instrument of ratification, acceptance or approval.

  • •  Article 59(2), Protocol No 14 to the European Convention for the Protection of Human Rights and Fundamental Freedom (2004) CETS No 194:

    The European Union may accede to this Convention.

D.  Participation by ‘other subjects of international law’

1.  By associated States and certain other territories

  • •  Article 305(c)–(e), UN Convention on the Law of the Sea (1982) 1833 UNTS 3:23

    This Convention shall be open for signature by …

    1. (c)  all self-governing associated States which have chosen that status in an act of self-determination supervised and approved by the United Nations in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters;

    2. (d)  all self-governing associated States which, in accordance with their respective instruments of association, have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters;

    3. (e)  all territories which enjoy full internal self-government, recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly resolution 1514 (XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters;

2.  By a ‘fishing entity’

  • •  Article XXVIII(1), Convention for the Strengthening of the Inter-American Tropical Tuna Commission (2003) <http://www.iattc.org/PDFFiles2/Antigua_Convention_Jun_2003.pdf>:24

    1. 1.  Any fishing entity whose vessels have fished for fish stocks covered by this Convention at any time during the four years preceding the adoption of this Convention may express its firm commitment to abide by the terms of this Convention and comply with any conservation and management measures adopted pursuant thereto, by:

      (p. 672)
      1. (a)  signing, during the period referred to in Article XXVII(1) of this Convention, an instrument drafted to this effect in accordance with a resolution to be adopted by the Commission under the 1949 Convention; and/or

      2. (b)  during or after the above-mentioned period, providing a written communication to the Depositary in accordance with a resolution to be adopted by the Commission under the 1949 Convention …

3.  By a ‘separate customs territory’

  • •  Article XII(1)–(2), Marrakesh Agreement Establishing the World Trade Organization (1994) 1867 UNTS 3:25

    1. 1.  Any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement, on terms to be agreed between it and the WTO. Such accession shall apply to this Agreement and the Multilateral Trade Agreements annexed thereto.

    2. 2.  Decisions on accession shall be taken by the Ministerial Conference. The Ministerial Conference shall approve the agreement on the terms of accession by a two-thirds majority of the Members of the WTO.

4.  Participation authorized by separate treaty

  • •  Article XX, Agreement with respect to Social Security (US-Canada) (1981) 35 UST 3403:

    The Competent Authority of the United States and the authorities of the provinces of Canada may conclude understandings concerning any social security legislation within the provincial jurisdiction insofar as those understandings are not inconsistent with the provisions of this Agreement.26

5.  Participation authorized by the responsible State

  • •  Preamble, Agreement for the Exchange of Information for the Purpose of the Prevention of Fiscal Evasion and the Allocation of Rights of Taxation With Respect to Income of Individuals (Japan-Bermuda) (2010) <http://www.oecd.org/dataoecd/21/2/44538948.pdf>:

    The Government of Japan and the Government of Bermuda, the Government of Bermuda having been duly authorised by the Government of the United Kingdom of Great Britain and Northern Ireland, Desiring to conclude an Agreement for the exchange of information for the purpose of the prevention of fiscal evasion and the allocation of rights of taxation with respect to income of individuals, Have agreed as follows …

(p. 673) 5.  NGO Involvement

Non-governmental organizations (NGOs) do not have the capacity to conclude treaties in their own name. Nevertheless, NGOs have played an increasing role in the formation, implementation, and enforcement of certain multilateral treaties. Chapter 6 discusses these roles and assesses the NGO’s significance to international law and international relations. In terms of formation, NGOs frequently push for treaty negotiations and informally lobby States on their substance. IO procedural rules may give NGOs a more formal role as observers with a right to speak (but not vote).27 Such participation is only occasionally reflected in the treaty text itself. Treaties will more often provide for NGO participation after the agreement is in force; the ILO even (uniquely) goes so far as to incorporate them among member representatives. Other clauses provide for parties to cooperate with NGOs or use the information or services they provide. In a few cases, an NGO may be given standing to complain about potential treaty violations.

A.  NGO participation in treaty meetings

1.  As representatives of members

  • •  Article 3(1), (5), ILO Constitution, as amended (1972) <http://www.ilo.org/ilolex/english/constq.htm>:

    1. 1.  The meetings of the General Conference of representatives of the Members shall be held from time to time as occasion may require, and at least once in every year. It shall be composed of four representatives of each of the Members, of whom two shall be Government delegates and the two others shall be delegates representing respectively the employers and the workpeople of each of the Members.

    2. 5.  The Members undertake to nominate non-Government delegates and advisers chosen in agreement with the industrial organizations, if such organizations exist, which are most representative of employers or workpeople, as the case may be, in their respective countries.

2.  As observers

  • •  Article 11(1), (4), Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997) 2056 UNTS 211:

    1. 1.  The States Parties shall meet regularly in order to consider any matter with regard to the application or implementation of this Convention …

    2. 4.  States not parties to this Convention, as well as the United Nations, other relevant international organizations or institutions, regional organizations, the International (p. 674) Committee of the Red Cross and relevant non-governmental organizations may be invited to attend these meetings as observers in accordance with the agreed Rules of Procedure.

  • •  Article 23(5), Convention on Biological Diversity (1992) 1760 UNTS 79:

    … Any other body or agency, whether governmental or nongovernmental, qualified in fields relating to conservation and sustainable use of biological diversity, which has informed the Secretariat of its wish to be represented as an observer at a meeting of the Conference of the Parties, may be admitted unless at least one third of the Parties present object. The admission and participation of observers shall be subject to the rules of procedure adopted by the Conference of the Parties.

B.  NGO participation in implementing treaty obligations

  • •  Article 23(5)(g), WHO Framework Convention on Tobacco Control (2003) 2302 UNTS 166:

    1. 5.  The Conference of the Parties shall keep under regular review the implementation of the Convention and take the decisions necessary to promote its effective implementation and may adopt protocols, annexes and amendments to the Convention, in accordance with Articles 28, 29 and 33. Towards this end, it shall …

      1. (g)  request, where appropriate, the services and cooperation of, and information provided by, competent and relevant organizations and bodies of the United Nations system and other international and regional intergovernmental organizations and nongovernmental organizations and bodies as a means of strengthening the implementation of the Convention …

  • •  Article 15(2), 44(4), Rome Statute of the International Criminal Court (1998) 2187 UNTS 3:

    Article 15.  Prosecutor

    1. 2.  The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

    Article 44.  Staff

    1. 4.  The Court may, in exceptional circumstances, employ the expertise of gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States Parties.

  • •  Article 5(2), Marrakesh Agreement Establishing the World Trade Organization (1994) 1867 UNTS 3:

    The General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO.

  • (p. 675) •  Article XII(1), Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973) 993 UNTS 243:

    … To the extent and in the manner [the Secretariat] considers appropriate, he may be assisted by suitable inter-governmental or non-governmental international or national agencies and bodies technically qualified in protection, conservation and management of wild fauna and flora.

C.  NGO rights and standing

  • •  Article 34, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended (2010) CETS No 194:

    The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

  • •  Article 14(1), North American Agreement on Environmental Cooperation (Canada-Mexico-US) (1993) 32 ILM 1480:

    The Secretariat may consider a submission from any non-governmental organization or person asserting that a Party is failing to effectively enforce its environmental law, if the Secretariat finds that the submission:

    1. (a)  is in writing in a language designated by that Party in a notification to the Secretariat;

    2. (b)  clearly identifies the person or organization making the submission;

    3. (c)  provides sufficient information to allow the Secretariat to review the submission, including any documentary evidence on which the submission may be based;

    4. (d)  appears to be aimed at promoting enforcement rather than at harassing industry;

    5. (e)  indicates that the matter has been communicated in writing to the relevant authorities of the Party and indicates the Party's response, if any; and

    6. (f)  is filed by a person or organization residing or established in the territory of a Party.

Footnotes:

7  Chapter 1 (Part II.A.4).

8  As noted in Chapter 1, a third form of inter-State agreement is also possible, where agreements have legal force, but are governed by domestic, as opposed to international, law. Ibid (Part II.B.3).

9  See Copenhagen Accord (18 December 2009) in UNFCCC, ‘Report of the Conference on its Fifteenth Session’ UN Doc FCC/CP/2009/11/Add.1.

10  See eg VCLT Arts 41(1)(b), 58(1)(b).

11  See Chapter 16 (Part II.D. 423 et seq).

12  VCLT Art 60(3)(b); see also Chapter 23 (Part II.A, 582 et seq). The 1986 VCLT contains similar references to object and purpose. See Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986, not yet in force) 25 ILM 543.

13  See generally J Klabbers, ‘Some Problems Regarding the Object and Purpose of Treaties’ (1997) Finnish Ybk Intl L 138.

14  WA Schabas, ‘Reservations to Human Rights Treaties: Time for Innovation and Reform’ (1994) 18 Canadian Ybk Intl L 39, 48.

15  Such decoupling of a treaty’s objectives and purposes is, however, inconsistent with the prevailing view that a treaty’s object and purpose is a ‘comprehensive blanket term’. Klabbers (n 13) 148.

16  See Chapter 1 (Part II.A.2, 21 et seq).

17  See [1973] UNJY 79.

18  See eg Agreement on Cooperation (Europol-Russian Federation) (2003) <http://www.mid.ru/bdomp/ns-dos.nsf/162979df2beb9880432569e70041fd1e/0604c28d811b8da243256de1003d3e10!OpenDocument>. For an example of an IO-IO agreement, see the Agreement between the International Criminal Court and the EU on cooperation and assistance (2005) <http://register.consilium.eu.int/pdf/en/05/st14/st14298.en05.pdf>.

19  Some of these treaties may, however, accord IOs a non-party role (eg as observers) to treaty meetings. The extent of such participation is usually detailed in the relevant rules of procedure rather than in the treaty itself.

20  The Organization of African Unity’s participation in the Agreement establishing the Common Fund for Commodities (1980) is one of the few non-European examples of this occurring. See Final Clauses Handbook (n 6) 23.

21  See eg Agreement on the Promotion and Reciprocal Protection of Investment (Costa Rica-The Republic of China) (1999) <http://www.unctad.org/sections/dite/iia/docs/bits/Costa_rica_taiwan.pdf> (Costa Rica-Taiwan BIT); Basic Agreement on the Region of Eastern Slavonia, Baranja, And Western Sirmium (The Erdut Agreement) (1995) UN Doc A/50/757 (peace agreement between Croatia and a sub-State unit involving local Serb authorities); Agreement on the Protection of the River Scheldt (France-Netherlands-Walloon Region-Flemish Region-Brussels-Capital Region) (1994) 34 ILM 851.

22  Additional Annex IX provisions cover the extent of IO participation, rights and obligations, declarations of competence, responsibility and liability, and dispute settlement. The EU which joined UNCLOS in 1998 as the European Community is the only IO to have done so.

23  Two self-governing Associated States—the Cook Islands and Niue—joined UNCLOS pursuant to Art 305.

24  On 17 August 2010, Chinese Taipei filed a written communication of commitment pursuant to Art XXVIII. See <http://www.iattc.org/IATTCdocumentationENG.htm>.

25  Chinese Taipei acceded to the WTO Agreement under Art XII on 1 January 2002. Hong Kong and Macau are original WTO members by virtue of earlier accession to the 1947 GATT pursuant to a similar clause (Art XXXIII).

26  The Understanding and Administrative Arrangement (US-Quebec) (1983) TIAS 10,863 was concluded pursuant to this clause.

27  See eg Rule 31(1)–(4), Rules of Procedure, Conference of the Parties, WHO Framework Convention on Tobacco Control (2006) <http://www.who.int/fctc/cop/rules_procedure/en/index.html> (rules on NGOs as observers).