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Part VI Final Clauses, Article 29

James Devaney

From: The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary

Edited By: Roger O'Keefe, Christian J. Tams

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):
Immunity from jurisdiction, states — Treaties, ratification — Vienna Convention on the Law of Treaties — Treaties, signature — Treaties, entry into force

(p. 399) Article 29

Article 29  Ratification, acceptance, approval or accession

  1. 1.  The present Convention shall be subject to ratification, acceptance or approval.

  2. 2.  The present Convention shall remain open for accession by any State.

  3. 3.  The instruments of ratification, acceptance, approval or accession shall be deposited with the Secretary-General of the United Nations.

1.  Introduction

Article 29 addresses the formal means by which a State may express its consent to be bound by the Convention and the procedure by which it must do so. Paragraph 1 concerns by implication only States signatories to the Convention, which in line with standard practice may, and which alone may, become party to the treaty by means of ratification, acceptance, or approval. Paragraph 2 concerns by implication all other States—that is, States which did not sign the Convention during the period from 17 January 2005 to 17 January 2007 specified for its signature.1 In accordance again with established practice, these non-signatory States may, and should they wish to become party must, accede to the Convention. Paragraph 3 of Article 29 specifies that a State’s expression of consent to be bound by the Convention under paragraph 1 or 2 is to be effected by the deposit with the UN Secretary-General (the Convention’s depositary2) of the State’s instrument of ratification, acceptance, approval, or accession, as the case may be. Deposit of the relevant instrument does not, however, bring the Convention into immediate force for the depositing State, the question of entry into force, both initial and subsequently for individual States parties, being dealt with in Article 30.

At time of going to press,3 eight States had ratified the Convention, one had accepted it, one had approved it, and three had acceded to it.4

2.  Drafting History

Separate provisions on ratification (no mention being made of acceptance or approval) and accession were floated, alongside other final provisions, in Special Rapporteur Sucharitkul’s Eighth Report,5 but the ILC opted not to include final provisions in its (p. 400) 1991 draft articles. It was not until the last session, in 2004, of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property that such provisions were adopted. The Chairman of the Ad Hoc Committee suggested a simple article on consent to be bound which stated, without recourse to separate paragraphs, that the Convention was ‘subject to ratification, acceptance, approval or accession’, specifying in a second sentence that the relevant instruments were to be deposited with the Secretary-General.6 But unlike the other final provisions suggested by the Chairman, the text underwent substantial modification at the hands of the Committee, which divided it into three paragraphs and decided to use in paragraph 2 the formula ‘shall remain open for accession by any State’. The provision eventually adopted by the Committee7 emerged unaltered as Article 29 of the Convention.

3.  Key Points

3.1  Different formal means, Identical Legal Effects

Although it is not indicated in Article 29(1), established treaty practice dictates that only those States which have signed the Convention may express their consent to be bound by it via ratification, acceptance, or approval. For any other State wishing to become party to the Convention, accession in accordance with Article 29(2) is the only option. But whatever the formal means open to a State for the expression of its consent to be bound by the Convention, the legal effect is the same.8 Deposit by a State with the Secretary-General of its instrument of, variously, ratification, acceptance, approval, or accession establishes the State’s consent to be bound by the treaty.

3.2  Ratification, Acceptance, and Approval

A.  Equivalent for the Purposes of International Law

As Article 29(1) suggests, the terms ‘ratification’, ‘acceptance’, and ‘approval’ are, when used together in this way, functionally synonymous as a matter of international law. At first blush, Article 14(2) VCLT—which provides that ‘[t]he consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification’—might, in its use of the phrase ‘similar to’, be thought equivocal in this regard; but it is sufficiently clear from the article as a whole and from the ILC commentary to its draft forerunner9 that ‘similar to’ should be taken in this context to mean ‘substantively the same as’. Moreover, State practice leaves no room for doubt but that, as international acts, ratification, acceptance, and approval are to be treated as perfectly congruent when ranged alongside each other. The Treaty Section of the UN Office of Legal Affairs, for example, states:

Acceptance or approval of a treaty following signature has the same legal effect as ratification, and the same rules apply, unless the treaty provides otherwise.10

A treaty may provide contra that acceptance and approval may be effected without prior signature, in which case they are treated as equivalent to accession, and the rules on (p. 401) accession are taken to apply.11 As a general rule, however, ‘[r]atification, acceptance and approval all refer to the act undertaken on the international plane whereby a [signatory] State establishes its consent to be bound by a treaty’.12

The differences between ratification, acceptance, and approval lie solely at the level of national (viz constitutional) law, and are immaterial for present purposes. By making identical international provision for all three constitutional acts, Article 29(1) seeks to accommodate the varying demands of States’ domestic legal orders, thereby facilitating participation in the Convention.13

B.  ‘Ratification’

‘Ratification’ within the meaning of the international law of treaties differs from ‘ratification’ as the term is often used in the domestic legal context,14 particularly in relation to those domestic legal orders in which treaties are incapable of self-execution. ‘Ratification’ in the domestic sense usually refers to a legislative act by which some or all of the rules enunciated in a treaty are given effect within the law of the State in question. Such an act has no bearing on whether the State can be said to have ratified the Convention within the meaning of Article 29(1). Legislative enactment of this sort may predate or postdate the State’s ratification, in the international legal sense, of the Convention. Either way, it is a different legal phenomenon entirely.

3.3  Accession

A.  A one-step Process

Accession, as provided for in Article 29(2) of the Convention, is the usual means by which States not signatories to a treaty may become party to it.15 Whereas signature followed by ratification, acceptance, or approval is obviously a two-step process, a State’s entry into the Convention by means of ratification requires only a single act,16 namely deposit by that State with the Secretary-General of its instrument of accession, as provided for in Article 29(3).

B.  ‘Any State’

Just as Article 28 specifies that the Convention was open for signature by ‘all States’,17 Article 29(2) provides that the Convention is open for accession by ‘any State’. No substantive difference exists between the ‘all States’ and ‘any State’ formulas.18 The widespread use in multilateral treaties elaborated under the auspices of the UN of the former in relation to signature and the latter in relation to accession is perhaps intended (p. 402) to connote (and, if so, is unsuccessful in connoting) that the facility of accession is not available to States which have signed the treaty.

Opening the Convention for accession by any State affords States not members of the UN the opportunity to become party to the treaty. The formula is a not-infrequent feature of multilateral treaties that aspire to universal participation.19 But while the Organization’s near-universal contemporary membership reduces the provision’s practical significance, it does nothing to lessen its potential for diplomatic controversy. Whereas opening a multilateral treaty for accession by any UN member State is unproblematic insofar as it is self-evident when a State is and is not a member of the UN, the ‘any State’ formula is liable to place the Secretary-General—in his capacity as the Convention’s depositary, one of whose tasks it is to ascertain whether an aspiring State party may indeed become party to the Convention20—in the invidious position of having to reach a conclusion as to whether a territorial-political entity from which he may receive an instrument of accession but whose claim to statehood is contested is indeed a State and, as such, eligible to accede to the Convention.21

Some cases are likely to prove less problematic than others. Significantly, it would appear that, in accordance with the canon of logic that the greater includes the lesser, the ‘all States’/‘any State’ formula is taken to subsume the alternative ‘Vienna formula’, which embraces—in addition to UN members and parties to the Statute of the ICJ, both of which must be States22—those entities admitted as a member State to one or more of the UN specialized agencies.23 As explained by the Summary of Practice of the Secretary-General as Depositary prepared by the Treaty Section of the UN Office of Legal Affairs, such entities are ‘in essence recognized as States by the international community’.24 On the basis of this past practice, Palestine, for example, as a member State of UNESCO, would be eligible to accede to the Convention.

But not every entity claiming to be a State is a member of one of the UN specialized agencies. The Summary of Practice of the Secretary-General as Depositary explains what happened in the past in relation to such entities:

In reply to questions raised in connection with the interpretation to be given to the all States formula, the Secretary-General has on a number of occasions stated that there are certain areas in the world whose status is not clear. If he were to receive an instrument of accession from any such area, he would be in a position of considerable difficulty unless the [General] Assembly gave him explicit directives on the areas coming within the ‘any State’ or ‘all States’ formula. He would not (p. 403) wish to determine, on his own initiative, the highly political and controversial question of whether or not the areas whose status was unclear were States. Such a determination, he believed, would fall outside his competence. He therefore stated that when the ‘any State’ or ‘all States’ formula was adopted, he would be able to implement it only if the General Assembly provided him with the complete list of the States coming within the formula, other than those falling within the ‘Vienna formula’, i.e. States that are Members of the United Nations or members of the specialized agencies, or Parties to the Statute of the International Court of Justice.25

In the event, the General Assembly gave the Secretary-General no such list. Rather, on 14 December 1973, the Assembly adopted the following statement:

It is the understanding of the General Assembly that the Secretary-General, in discharging his functions as depositary of a convention with an ‘all States’ clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession.26

The Summary of Practice of the Secretary-General as Depositary elaborates on what is meant in this regard by ‘the practice of the Assembly’:

The ‘practice of the General Assembly’ referred to in the above-mentioned understanding is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State even though it does not fall within the ‘Vienna formula’. Such indications are to be found in General Assembly resolutions …27

One type of General Assembly resolution taken in the past by the Secretary-General as an unambiguous indication of the statehood of a non-member State was the common resolution which noted with satisfaction the accession to independence of a former non-self-governing territory.28 In contrast, on the basis of General Assembly resolution 2758 (XXVI), in which the Assembly recognized the representatives of the government of the People’s Republic of China as the only legitimate representatives of China to the UN,29 ‘instruments received from the Taiwan Province of China will not be accepted by the Secretary-General in his capacity as depositary’.30

3.4  An open-ended Opportunity

Unlike signature of the Convention, for the performance of which Article 28 afforded States a fixed period of two years, there is no time-limit on the availability to a signatory State of ratification, approval, or acceptance of the Convention in accordance with Article 29(1) or on the availability to any other State of accession in accordance with Article 29(2). As is usual for multilateral standard-setting treaties,31 the opportunity to become party to the Convention is temporally open-ended.

(p. 404) Where a signatory State shows no signs of moving towards ratification, acceptance, or approval, its obligation to refrain from acts which would defeat the object and purpose of the Convention will remain on foot unless and until it makes clear its intention not to become party to the treaty.32

3.5  Deposit of the Instrument of Ratification, Acceptance, Approval, or Accession

The obligation on a State wishing to express its consent to be bound by the Convention to deposit its instrument of ratification, acceptance, approval, or accession with the Secretary-General is more than merely administrative. Although Article 29(3) does not spell this out, a State’s expression of consent to be bound is effected as a matter of law by its deposit with the Secretary-General33 and, as a corollary, is effective from the date of such deposit.

3.6  Consent to be Bound and Entry into Force

Deposit by a State of its instrument of ratification, acceptance, approval, or accession does not render the Convention in force for the depositing State.34 The Convention’s entry into force, both initial and for individual States parties thereafter, is dealt with in Article 30.35 The twofold upshot of this latter provision is that, for the first thirty States to deposit their respective instruments of consent, the Convention will enter into force only on the thirtieth day following the date of deposit of the thirtieth such instrument;36 and that, for each State depositing its instrument of consent after the deposit of the thirtieth such instrument, the Convention will enter into force only on the thirtieth day after the deposit by that State of its own instrument.37

Once it has expressed its consent to be bound, a State is obliged to refrain from acts which would defeat the Convention’s object and purpose ‘pending the entry into force of the [Convention] and provided that such entry into force is not unduly delayed’.38 This obligation applies as much in respect of the Convention’s entry into force for a specific State after its initial entry into force as in respect of that initial entry into force, even if the proviso as to undue delay makes sense only in the second context. In other words, just as (subject to the foregoing proviso) any and all of the first thirty States to express their consent to be bound under Article 29 must refrain from acts contrary to the Convention’s object and purpose while they await the Convention’s initial entry into force, so too must a State which expresses its consent to be bound under Article 29 sometime after the thirtieth such expression of consent refrain from like acts during the thirty-day interim between the deposit of its instrument of consent to be bound and the Convention’s entry into force for it.

(p. 405) 4.  Evaluation

Article 29 is a straightforward provision affording flexibility as to the formal means by which a State may express its consent to be bound by the Convention. Its use of the ‘any State’ formula in relation to accession may raise sensitive questions for the Secretary-General as depositary, but a procedure is in place for answering these questions.

Footnotes:

1  See Art. 28 and ‘In witness whereof’ clause UNCSI.

2  See Art. 32(2) UNCSI.

3  28 September 2012.

4  See Status of Multilateral Treaties deposited with the Secretary-General, chap. III, no. 13 (United Nations Convention on Jurisdictional Immunities of States and Their Property, New York, 2 December 2004), <http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-13&chapter=3&lang=en>.

5  See Eighth report Sucharitkul, 35.

6  Suggestions of the Chairman, 2, art. E.

7  See art. 29 Draft UNCSI.

8  See Arts 2(1)(b) and 11 VCLT; Final Clauses Handbook, 37 and 121; Treaty Handbook, 10, para. 3.3.4.

9  See ILC commentary DALT, draft art. 11, para. 9.

10 Final Clauses Handbook, 36.

11  See ILC commentary DALT, draft art. 11, paras 9, 10, and 12; Treaty Handbook, 9, para. 3.3.3.

12 Final Clauses Handbook, 124.

13  See ILC commentary DALT, draft art. 11, paras 11–12.

14  See eg ILC commentary DALT, draft art. 11, para. 1; Treaty Handbook, 9, para. 3.2.2.

15  See eg ILC commentary DALT, draft art. 12, para. 1.

16  See, in relation to the law of treaties generally, Final Clauses Handbook, 37–8 and 121; Treaty Handbook, 10, para. 3.3.4.

17  Note that, since ratification, acceptance, and approval are all premised on a State’s prior signature of the Convention, it was unnecessary for the drafters to specify in Art. 29(1) UNCSI the range of States to which these three forms of expression of consent are open. Art. 28 UNCSI specifies that the Convention is open for signature by all States, and only those States which signed the Convention may ratify, accept, or approve it.

18  See eg Summary of Practice of the Secretary-General as Depositary, 23, para. 81; Final Clauses Handbook, 12–14.

19  See Final Clauses Handbook, 12.

20  See Summary of Practice of the Secretary-General as Depositary, 21, para. 73 and 36, para. 120.

21  See Final Clauses Handbook, 14.

22  See Art. 4 UN Charter and Art. 35 ICJ Statute, respectively.

23  See Summary of Practice of the Secretary-General as Depositary, 22–3, paras 79–81 and 83 (with erratum to para. 79 indicated at iii); United Nations Juridical Yearbook 1974, 158, para. 4. See also Summary of Practice of the Secretary-General as Depositary, 24, para. 86: ‘[O]n the basis of the Cook Islands’ membership in the World Health Organization, and of its subsequent admittance to other specialized agencies (Food and Agriculture Organization of the United Nations, United Nations Educational, Scientific and Cultural Organization and International Civil Aviation Organization) as a full member without any specifications or limitations, the Secretary-General considered that the Cook Islands could henceforth be included in the “all States” formula, were it to wish to participate in treaties deposited with the Secretary-General.’ The crucial distinction between the procedure, on the one hand, for admission to the UN and (in the case of non-member States) participation in the Statute of the ICJ and, on the other, for admission to one of the UN specialized agencies is that the latter is not subject to the veto of the five permanent members of the Security Council.

24 Summary of Practice of the Secretary-General as Depositary, 22, para. 79 (with erratum indicated at iii).

25 Summary of Practice of the Secretary-General as Depositary, 23, para. 81. See also Final Clauses Handbook, 14.

26 United Nations Juridical Yearbook 1973, 79, note 9. See also United Nations Juridical Yearbook 1974, 158, para. 2; Summary of Practice of the Secretary-General as Depositary, 23, para. 82; Final Clauses Handbook, 14.

27 Summary of Practice of the Secretary-General as Depositary, 23, para. 83.

28  See Summary of Practice of the Secretary-General as Depositary, 24, para. 84.

29  UNGA res. 2758 (XXVI), 25 October 1971.

30 Final Clauses Handbook, 15.

31  See Treaty Handbook, 9, para. 3.3.2. See also Final Clauses Handbook, 38, in specific relation to accession.

32  See Art. 18(a) VCLT. See also Summary of Practice of the Secretary-General as Depositary, 41, para. 139; Treaty Handbook, 10–11, para. 3.3.5.

33  See Art. 16(b) VCLT.

34  See eg Summary of Practice of the Secretary-General as Depositary, 42, para. 142; Treaty Handbook, 8, para. 3.1.1.

35  See commentary to Art. 30 UNCSI. See also, more generally, Art. 24(1) VCLT.

36  See Art. 30(1) UNCSI.

37  See Art. 30(2) UNCSI.

38  Art. 18(b) VCLT.