- UNCLOS (UN Convention on the Law of the Sea) — Vienna Convention on the Law of Treaties
Treaties will generally set out the substantive rights and obligations of the treaty parties. But treaties are also used to establish institutions for international cooperation. Such institutions may take many forms such as formal international organizations (IOs) or international courts. But treaties may also set up organs that are neither IOs nor international courts in the traditional sense. Such organs may be labelled ‘treaty bodies’.1
Today, treaty bodies serve various functions. Some have many characteristics of an IO. In the international environmental context, treaty bodies have a multiplicity of tasks, including developing new substantive commitments, guiding sub-organs and the secretariat, and ensuring implementation of States’ obligations. But treaty bodies may also have more specialized competences. For example, the Commission on the Limits of the Continental Shelf, set up by the UN Convention on the Law of the Sea (UNCLOS), has a specific function—to make substantive recommendations on the outer limit of continental shelves. Bodies established by human rights and arms control treaties are essentially limited to controlling implementation of the relevant treaty by States parties, or, in the case of human rights treaty bodies, to resolving disputes between individuals and States.
Treaty bodies have not received much scholarly attention, either in the literature on treaty law, the law of international institutions, or specialized works on international environmental law, human rights, etc. Clearly, treaty law applies to treaty bodies: their powers and procedures must be determined based on the constituting treaty. But treaty law does not have much to say about treaty bodies’ competence to establish subsidiary bodies; the legal status of their decisions; or whether treaty bodies have international legal personality (and thus the capacity to possess and act on international legal rights and obligations). Such issues are usually the domain of international institutional law. However, it may be asked whether the tenets of international institutional law as developed for IOs apply wholesale (or even partly) References(p. 429) to treaty bodies. After all, if the parties have carefully determined not to establish an IO, why should the law of IOs—or, as the case may be, the law of international courts—apply?
This chapter examines the current status of treaty bodies in international law and practice. It explores why States have established them, the various structural forms they take, as well as their authority to act both internally and externally, on topics such as substantive decision-making, compliance, and coordination with other treaty bodies, IOs, and States. This analysis reveals how treaty bodies reflect the increasingly public character of international law as international organs exercising functions delegated by States. They may also be seen as aspects of a growing international legalization, judicialization—and even constitutionalization—of international law.
But, in the aggregate, the proliferation of treaty bodies may also be seen as an aspect of de-constitutionalization given the increased institutional fragmentation they have generated. Moreover, as international institutions are increasingly empowered, their exercises of authority are more and more questioned in terms of democratic control, respect for the rule of law, and human rights.2 Treaty bodies are not immune from such inquiries. Indeed, treaty bodies may be charged with contributing to a deformalization of international law, representing expert bodies and other, more informal organs that may be seen as less accountable than traditional IOs.3
The reasons for establishing treaty bodies rather than full-fledged IOs or courts may vary among different subject matters and from case to case. Generally speaking, three rationales stand out. First, States may choose to create treaty bodies to minimize interference in their sovereignty. For example, the minimalist approach to institutional creation was a deliberate choice in Antarctic cooperation. It took forty years before a permanent secretariat was established, in part because of a suspicion that even the establishment of a secretariat could lead to an internationalization of Antarctica, threatening States with sovereignty claims in the territory.4 Similarly, human rights treaty bodies interfere less with State sovereignty by resolving individual complaints by non-binding decisions rather than the binding judgments produced by international courts.
References(p. 430) Second, treaty bodies may also be the preferred option due to a reluctance to establish new IOs or a sense that it is inappropriate to use existing IOs for new purposes. In international environmental law, treaty bodies emerged in the 1970s and 1980s in concert with growing dissatisfaction with traditional IOs because of their cost and bureaucracy. Creating treaty bodies thus might seem less costly and more effective. They avoid difficulties in using an existing IO with an already fixed membership. And they make choosing the location of a new IO unnecessary.5
Third, the choice of treaty bodies rather than IOs in international human rights and arms control may be due to their limited functions. As noted, supervisory organs usually only supervise States’ implementation of treaty obligations while the meeting of the parties’ only function is to elect members of such supervisory bodies.
There are, however, cases where it may be difficult to explain why States opted either for an IO or a treaty body. For example, the Convention on Chemical Weapons and the Comprehensive Test Ban Treaty both established IOs. But, despite similarities in subject matter and obligations, the Anti-Personnel Landmine Convention did not, establishing a meeting of the parties instead, whose function is to ‘consider any matter with regard to the application or implementation of this Convention’.6
Treaty bodies almost always include a central plenary organ, but depending on their functions and relationship to other treaties, subsidiary bodies and a secretariat may also be established. The plenary organ of treaty bodies may be called the Conference of the Parties (COP) or a different denomination like Meeting of the Parties (MOP). It will meet regularly, often annually. A ‘bureau’ may be elected to serve on its behalf between regular meetings and to operate as a facilitating organ during plenary body sessions.
Protocols are formally separate treaties from the treaty that spawned them. Nevertheless, substantive overlap between the parent convention and its protocol(s)—and full or partial overlap in membership between the two—sometimes militates in favour of joint institutions. In other cases, a protocol’s more specialized functions or different membership may prevent such integration.
The Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) is an example of a protocol with a separate treaty body—a MOP—that meets in conjunction with the COP of the foundational Vienna Convention for the Protection of the Ozone Layer. In contrast, the plenary body of the regional Convention on Long-Range Transboundary Air Pollution (LRTAP Convention) References(p. 431) also serves as the governing body of its relevant protocols. The Kyoto Protocol to the UN Framework Convention on Climate Change (UNFCCC) provides that the Convention’s COP shall serve as the Protocol’s MOP, but parties to the Convention that are not parties to the Protocol may participate only as observers when the COP acts in this capacity. And while the Antarctic Treaty and the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) contain several identical substantive obligations, they generated legally separate institutions.7 Thus, in so far as cooperation is needed, this must to be undertaken at an inter-institutional level.
Protocols may also increase the competence of existing treaty bodies. In the human rights context, the (First) Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) establishes the Human Rights Committee’s power to deal with individual complaints. On the other hand, the Optional Protocol to the Convention Against Torture establishes a separate Subcommittee to conduct visits to places where persons are deprived of their liberty and to make appropriate recommendations on their protection.8
In addition to the plenary organ, subsidiary bodies may be established, whether through express treaty provisions or by plenary body decisions. For example, the meeting of States parties to the Anti-Personnel Landmine Convention established intersessional Standing Committee meetings, contact groups, and an Implementation Support Unit.9 Subsidiary bodies may have different functions from plenary organs, including providing financial assistance (eg the Montreal Protocol’s Executive Body), technology transfer, compliance control (eg the Kyoto Protocol’s Compliance Committee), or scientific advice. Membership may replicate the COP or operate with more limited numbers. Subsidiary bodies may even be composed of persons acting in their individual capacity. These organs will generally be under the guidance of the plenary body, but their independent status may prevent such guidance, as is the case for meetings of the parties to human rights supervisory organs vis-à-vis the various committees that oversee State implementation of those treaties or hear individual complaints relating to them.
Aside from a plenary organ and any subsidiary bodies, a treaty body may have a secretariat. The secretariat may be designated in the treaty itself; the treaty may establish an interim secretariat and leave the final decision to the plenary body; or the treaty may not contain any provision on a secretariat. Establishing a secretariat is important to ensure a permanent organ that can act between meetings of the plenary and any subsidiary bodies that otherwise serve these bodies. Typical secretariat functions include conducting studies, preparing draft decisions for the other treaty bodies, providing technical assistance to parties, and receiving and References(p. 432) circulating reports on implementation of commitments. The secretariat may also serve as the conduit for cooperation with relevant IOs and other treaty bodies; a role the Assembly of States Parties to the International Criminal Court (ICC) described as ‘necessary for the exercise of the functions of the Assembly and its subsidiary bodies and the fulfilment of the purposes of the Court’.10
While plenary and subsidiary bodies are independent organs, many treaties locate their secretariats within existing IOs. Global treaties on human rights and the treaty bodies established by UNCLOS have their secretariats situated as part of the UN. Although some establish more autonomous secretariats, global environmental treaties generally have their secretariat in the UN, UNEP, the UN Economic Commission for Europe (UNECE), or the International Maritime Organization (IMO). For example, the UNFCCC established an interim secretariat and left the final decision to its COP. The COP decided that ‘the Convention secretariat shall be institutionally linked to the United Nations, while not being fully integrated in the work programme and management structure of any particular department or programme’.11 When a treaty body uses an existing IO to perform secretariat functions, the location of that secretariat may be different from that of the host organization. For example, the secretariat of the Convention on Biological Diversity (CBD) is based in Montreal, whereas the ‘host’, UNEP, is located in Nairobi. In an unusual case, the Ramsar Convention uses a non-governmental organization (NGO)—the International Union for Conservation of Nature (IUCN)—as its secretariat.12
A treaty body’s functions are spelled out in the constitutive treaty, although, as discussed below, it may have ‘implied powers’ as well. Assigned functions can range widely. Some plenary bodies have fairly limited functions. For example, meetings of the parties in human rights treaties merely elect members of supervisory organs, such as the Human Rights Committee or the Committee against Torture. The UNCLOS Meeting of States Parties (SPLOS) elects members of the International Tribunal for the Law of the Sea and the Commission on the Limits of the Continental Shelf, and deals with budgetary and administrative matters of the Tribunal.13
References(p. 433) In contrast, plenary bodies such as those associated with multilateral environmental organizations (MEAs) have a wide range of powers. Typical functions include: (i) matters internal to the MEA such as establishing subsidiary bodies, adopting rules of procedure, and giving guidance to subsidiary bodies and the secretariat; (ii) development of the parties’ substantive cooperation by adopting new binding or non-binding commitments; (iii) supervision of the MEA’s implementation and State party compliance; and (iv) external activity including arrangements with States, IOs, or organs of other MEAs, which raise questions of the treaty body’s ‘international legal personality’. In each of these areas a treaty body may have delegated competence to act or its powers may evolve over time. For example, the meeting of States parties in the Anti-Personnel Landmine Convention was originally just intended to serve as a permanent forum in the absence of a secretariat and a vehicle for observing the Convention’s application and implementation; over time, however, it has developed into a ‘major decision-making event’.14
A treaty body’s internal competence typically includes powers to adopt rules of procedure, financial regulations, the budget, and to establish and give guidance to subsidiary bodies and a secretariat. The Consultative Meeting of the Antarctic Treaty thus distinguishes its ‘Decisions’ on an ‘internal organizational matter’ from ‘Measures’ on substantive matters adopted under Article IX of the Treaty.15 Powers at the internal level may be explicitly established in the treaty, either by specifying the different treaty body functions, or by setting out more general powers to exercise the functions required for achieving the treaty’s objectives.
Sometimes, the treaty may not offer much guidance, and it may be necessary to turn to principles of international institutional law. The ICJ first accepted the doctrine of implied powers for IOs in the 1949 Reparations case, which concerned the UN’s capacity to bring legal claims externally.16 In 1954, in the U.N. Administrative Tribunal case, the ICJ held that the UN also had competence to establish a subsidiary organ—a tribunal to render binding judgments in disputes with employees.17
Should such implied powers also be accepted as a basis for treaty bodies operating at the internal level? At the outset, caution is warranted in applying doctrines applicable to IOs when the treaty parties consciously decided not to establish an IO, but instead established the more modest set-up of a treaty body. On the other hand, it may be difficult to find any determination or intention by the References(p. 434) parties not to apply the doctrine of implied powers. The same reasoning used for IOs would seem suitable for treaty bodies: the relevant functions may be considered necessary to achieve the objectives of the cooperation. Furthermore, internal level decisions by the treaty organ will not impose new substantive obligations on member States, and should, as such, be more acceptable than implying substantive decision-making powers. At the same time, the particular—and possibly more limited—functions of a treaty body may militate against accepting as wide a set of internal powers as for IOs.
If we start with the work of the plenary body, there should be no reason not to accept that this organ may adopt its own rules of procedure, to the extent that such rules are not laid down in the treaty itself. For example, meetings of the parties to human rights treaties must have the competence to decide procedures for nomination and election of members of supervisory bodies, and these bodies in turn must be able to decide on procedures for dealing with the examination of State reports, individual complaints, and the adoption of any General Comments interpreting the treaty’s obligations.
Treaty bodies will not necessarily have the capacity to dispose of their own financial resources, but if they do, they should also have the power to adopt appropriate financial regulations and the budget. Furthermore, if the treaty body is a political organ, it may have powers concerning the procedural rights and obligations of member States (eg exclusion or suspension of voting and other rights) and representatives of member States (eg approval of credentials). The treaty body should also have the power to implement any rules of procedure in practice (eg adopting meeting agendas, allotting the speaking order, and admitting observers from IOs, NGOs and non-member States).
Treaty bodies will also generally be in a position to establish subsidiary organs. But while plenary political organs may have extensive express or implied powers to establish subsidiary bodies, the competence of more specialized organs may be limited. For example, supervisory human rights bodies consisting of independent experts, due to their function as expert bodies, should not—or only to a limited extent—be allowed to delegate substantive decision-making powers to a secretariat. It is more acceptable that a subgroup—or individual members—of such bodies be allocated special responsibilities in such cases. If subsidiary organs are established, the treaty organ establishing them should have the powers to control such organs—unless they are meant to have an autonomous status, such as scientific bodies or organs for dispute settlement. In this sense, an elaborate hierarchical structure may be developed, which in practice may be comparable to that of an IO.
The establishment of a secretariat itself may also be a controversial issue where the treaty is silent, as evidenced by the Antarctic Treaty experience where it took decades to establish one. If a separate secretariat is designated in the treaty or established by the treaty body, there is no question about the treaty body controlling the secretariat. Furthermore, the treaty body would be the supreme organ when it comes to recruiting and instructing secretariat personnel.
More intricate questions arise if the secretariat functions are undertaken by an existing IO. The treaty body’s independent status means that the IO hosting the (p. 435) secretariat may only exercise the powers flowing from this particular function, and has no powers to instruct the treaty body or its subsidiary bodies. As regards the secretariat, however, matters are different. Both the treaty body and the host organization possess powers in relation to the secretariat. The treaty body and its subsidiary bodies must be considered to have the authority to instruct the secretariat in substantive as well as procedural matters. On the other hand, as the host organization employs the secretariat officials, it has the right to appoint, instruct, and terminate staff. If contradictory instructions occur, the relevant officials would be obliged, under the internal law of the IO, to carry out its instructions. These instructions, however, could violate the commitments undertaken by the IO in agreeing to serve as a host organization for the treaty body.
As with IOs, moreover, internal decisions, such as guidance by the treaty body to subsidiary bodies and the secretariat, should be considered to be binding unless the treaty or the relevant decision itself specifically indicates that it was intended to be non-binding.18
1. Vehicles for treaty body decision-making
Treaty bodies may have important roles in developing the substantive commitments of States parties. In doing so, they contribute to the dynamic character of international law and overcome the cumbersome treaty-making process. On the other hand, treaty bodies may also balance the desire for effective decision-making with the need for State consent, which is sought to ensure democratic legitimacy for international obligations as well as their national implementation. In practice, different treaty bodies have different functions and therefore also different roles and powers when it comes to substantive decision-making, ie establishing new substantive obligations for States parties, either as international ‘legislation’ or ‘executive’ decisions in individual cases.
Treaty bodies often have explicit delegated law-making powers comparable to plenary organs of IOs. But only exceptionally will such organs have the competence to adopt binding new obligations for member States by majority voting. One example is Article 2(9) of the Montreal Protocol, which allows the MOP to adopt certain new obligations in the form of ‘adjustments’—with binding effect for all parties—by a ‘double majority’ of developing and developed States. This authority has never been used. However, its mere existence may induce States’ willingness to accept such obligations through consensus.
Considerable ingenuity has been demonstrated in making substantive decision-making more effective, short of binding decisions by majority-voting, including amendments and protocols; recommendations; and interpretations of the relevant References(p. 436) treaty. First, treaty bodies may have authority to adopt amendments to the relevant treaty text and its annexes or new legal instruments in the form of protocols. Although State consent is required for these new commitments to enter into force, the existence of the treaty body’s authority may facilitate recognition of the need for amendments and protocols as well as their eventual negotiation.19
A second, more potent, way of decision-making can be found in the Antarctic Treaty. Article IX provides that the Antarctic Treaty Consultative Meeting (ATCM) may adopt recommendations which shall become ‘effective’—presumably legally binding—when approved by the States parties.20 While it is up to each State to decide whether to accept the binding character of the recommendation, such acceptance does not require a ratification procedure.
Third, treaty bodies may also contribute to international ‘legislation’ by interpreting the relevant treaty or by adopting recommendations in the form of soft law. For example, the Commission on the Limits of the Continental Shelf has a ‘quasi-legislative’ function. Its recommendations on the outer limit of the continental shelf beyond 200 nautical miles will, if implemented by the coastal State, be ‘final and binding’.21 This represents a unique example of a scientific-administrative international body contributing to a binding determination of the interpretation of a treaty on complex issues, with wide-reaching legal and political implications. Similarly, the ICC Assembly of States Parties has the power to adopt and amend ‘elements of crime’ which shall ‘assist the Court in the interpretation and application of Articles 6, 7, 8 and 8 bis’ (genocide, crimes against humanity, war crimes and the crime of aggression), subject to the condition that such elements ‘shall be consistent’ with the Rome Statute.22
Interpretative measures adopted by COPs are also important in international environmental law. In some cases, this power of interpretation is expressly conferred by the MEA. Thus, Article 10(1) of the Montreal Protocol authorizes the MOP to interpret the term ‘agreed incremental costs’ (incurred by developing States parties in complying with the Protocol) by establishing an ‘indicative list of … incremental costs’.23 But, more commonly, a COP will interpret a MEA not because the agreement authorizes it, but because experience in operating the MEA or scientific, technical, or other developments are perceived as requiring it.24 For example, in 2003, the Montreal Protocol MOP acknowledged ‘that the meaning of the term “State not party to this Protocol” may be subject to differing References(p. 437) interpretations with respect to hydrochlorofluorocarbons by Parties to the Beijing Amendment’ and made a decision on the definition of this term.25
Supervisory bodies of human rights conventions often have authority to issue ‘General Comments’ on their respective treaties.26 While such comments are formally not ‘legislation’, and not issued by a body competent to undertake law-making, they are interpretations of the respective conventions, to be applied in examining State reports and in compliance procedures. Realistically speaking, as they set out in more detail the obligations contained in the conventions, they may be regarded as a form of soft legislation.27
2. The sources of treaty body competence over substance
To the extent that treaty bodies have a comparable structure and function as traditional IOs, they should be expected to have comparable law-making powers. But as with powers at the internal level, caution is advised in determining the scope of law-making powers. They may be constrained by both the relevant body’s function(s) and the possible intention of the parties to restrict delegated powers by establishing a treaty body rather than an IO.
When assessing more closely whether tenets of IO law should apply, there is no reason to deny the application of the principle of effective interpretation to the relevant treaty.28 It must be assumed that the parties desired to achieve effects with their cooperation, be it in the field of human rights, arms control, or the environment. But, as with IOs, there is more reason to be sceptical about the doctrine of implied powers when it comes to substantive law-making. Unlike the determination of internal powers, substantive law-making means that new obligations are imposed on States parties. The point of departure should thus be that law-making power must be based on explicit authority in the treaty. Substantive decisions of a non-binding character may, however, be more easily accepted on the basis of implied powers than binding decisions.
Difficult questions may arise when determining substantive powers in concrete cases. For example, the decision by the COP of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal to ban transboundary movement of covered waste from OECD to non-OECD countries was controversial. Some States argued that the decision was not legally binding because the COP could not alter parties’ substantive obligations merely by utilizing its explicit general power to take action to achieve the Convention’s References(p. 438) objectives. The COP sought to resolve the controversy by adopting an amendment to the Convention that incorporated the substance of the decision.29 As of 20 August 2011 the amendment had received seventy ratifications, but was not yet in force.30
In contrast, Article 17 of the Kyoto Protocol enables the MOP to adopt ‘rules’ relating to the operation of the system for trading in emissions of greenhouse gases. The use of the word ‘rules’ suggests that such measures are intended to be legally binding. This idea is supported by the fact that Article 17 refers to ‘relevant principles, modalities, rules and guidelines’, indicating that ‘rules’ are different from, for example, non-binding ‘principles’ or ‘guidelines’.31 Such an interpretation is also supported by substantive considerations. For instance, a party that makes use of the ‘rules’ on emission trading by buying emission quotas cannot, arguably, be accused of non-compliance with the Protocol when it wants to add these quotas to its emission limits in the Protocol.32 This example demonstrates that there may be a fine distinction between effective interpretation and the use of implied powers: relevant arguments may be found in both the wording and object and purpose of the treaty.
But even if the treaty body is not empowered to make binding interpretations, its decisions are not necessarily without legal significance. Reliance on such practice may, however, raise complex questions regarding the relationship between treaty law and the law of international institutions. Article 31(2)(b) of the Vienna Convention on the Law of Treaties (VCLT) requires that treaty interpretation takes into account ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. Such an agreement might be seen expressed in decisions of treaty organs consisting of representatives of the parties. But it seems more natural to see such practice as the practice of the treaty body, rather than the collective practice of States parties.33 This view is even clearer when the treaty body does not consist of representatives of States parties, but rather independent experts, as is the case with the supervisory organs of human rights conventions.
Decision-making by treaty bodies has proven more effective than traditional consent-based treaty processes. However, how treaty bodies take these decisions, ie by majority vote or consensus, requires some scrutiny. Since the mid-1960s, References(p. 439) treaty bodies have increasingly used a consensus requirement to keep powerful States on board. But a consensus requirement may prevent decisions or make them ‘constructively’ vague.34 It may also be contested what is meant by consensus, as evidenced by adoption of the Cancun Agreements by consensus under the UNFCCC in 2010 over the vocal objections of Bolivia.35 A compromise between consensus and simple majority voting may be to require qualified majorities and/or weighted voting. The Montreal Protocol combines those two techniques by requiring a double majority under the aforementioned Article 2(9); a two-thirds majority must include a majority of developing States parties and a majority of developed States parties. All told, the possibility to object to, and so not be bound by decisions a State does not like, serves also to protect against treaty bodies gaining overly wide-reaching powers on decision-making by majority-voting.36
International law has traditionally left the enforcement of treaty obligations to individual States parties, whether through: suspension or termination of treaties as a consequence of material breach; invoking State responsibility, including countermeasures; or, by initiating proceedings by international courts. In recent years, States have sought to supplement these essentially bilateral approaches with multilateral arrangements to ensure national implementation. Many treaties now establish their own collective and individual mechanisms in the form of supervisory treaty bodies to serve treaty implementation and enforcement. Originally inspired by mechanisms developed in the ILO, so-called ‘non-compliance procedures’ now exist in several fields, including human rights, international environmental law, and arms control.
Supervisory treaty bodies are well-suited to apply measures of a more facilitative quality in lieu of traditional coercive approaches, consonant with the view that a ‘managerial approach’ rather than an ‘enforcement approach’ may better address non-compliance questions.37 Treaty organs may also be better designed to prevent non-compliance rather than waiting to address reparations for damages post-hoc. Finally, these bodies may also offer a new structure for communication rather than confrontational approaches that might undermine the cooperative spirit in ongoing international cooperation under the same treaties.
These are all plausible reasons why treaties may contain non-compliance procedures. An alternative explanation exists, however; namely that States prefer non-compliance procedures because—instead of leaving decisions to a third party court or an arbitral tribunal—they allow States more control over the process and its References(p. 440) outcome. Furthermore, a decision resulting from a non-compliance procedure is not final in the form of res judicata, and may therefore be seen as less intrusive on State sovereignty.
A fundamental requirement for assessing compliance with international obligations is information about relevant facts, be it the emission of relevant polluting substances, the treatment of human beings, or the manufacturing and storage of weapons. States have traditionally been responsible for providing such data through reporting obligations. Expert Review Teams (ERTs) established under the Kyoto Protocol, however, offer an example of how fact-finding can be done by independent treaty bodies. ERTs provide a ‘thorough and comprehensive technical assessment’ of ‘all aspects of the implementation by a Party of the Kyoto Protocol’, and identify ‘any problems in, and factors influencing, the fulfilment of commitments’ as well as ‘questions of implementation’ with regard to a party’s performance.38 We find also human rights treaty bodies empowered to conduct fact-finding inquiries on the territory of States parties if they have reason to believe that serious human rights violations are taking place.39
Beyond fact-finding, human rights treaty bodies may—to the extent agreed to by the relevant State—consider individual complaints and, as discussed above, issue General Comments on the interpretation of relevant treaty obligations. The Aarhus Convention is special among MEAs in contemplating a right for individuals and NGOs to trigger cases of non-compliance, presumably as an aspect of the Convention’s human rights character.40
Decisions of supervisory treaty bodies are generally based on express authorization in the respective treaty texts, but ‘implied powers’ are also occasionally used. For example, it has been disputed whether the adoption of General Comments by human rights treaty bodies can only be based on specific treaty provisions, including subsequent State practice, or may exist by necessary implication.41 Likewise, the adoption of interim measures lacks an explicit basis in the relevant conventions. Implied powers have also been claimed as the legal basis for follow-up procedures.42 Human rights treaty bodies have been successful in achieving acceptance for all of these activities. Thus, as noted above, they may be considered to constitute both References(p. 441) subsequent practice of the treaty bodies (under international institutional law) and the subsequent practice by the States parties (under the law of treaties).43
What legal status human rights treaty body findings have is more controversial. Some human rights literature has claimed that views adopted by the Human Rights Committee (HRC) in cases of individual complaints involving the ICCPR are, although formally not binding, to a great extent comparable to judicial decisions.44 In its General Comment No 33, the HRC accepted that its function is not ‘as such, that of a judicial body’.45 But the HRC stated that its Views exhibit ‘some important characteristics of a judicial decision’. The Views are arrived at ‘in a judicial spirit’, including ‘the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions’. Furthermore, the General Comment established that the Views represent ‘an authoritative determination’46 and that States parties ‘must use whatever means lie within their power in order to give effect to the views of the Committee’.47 This gives an impression that, to the HRC at least, its Views are tantamount to legally binding decisions.
Despite opposition from some States, there are arguments for taking the practice of treaty bodies into account because doing so accords with the object and purpose of States parties: they established these organs to ensure the treaty’s effective implementation and to obtain authoritative interpretations of treaty obligations. The ICJ endorsed this view in the Diallo case, stating that the HRC practice should be accorded ‘great weight’ since it ‘was established specifically to supervise the application of that treaty [the ICCPR]’. The argument was thus based on the parties’ intention. But the Court also used a ‘systemic’ argument for relying on HRC practice, referring to the need ‘to achieve the necessary clarity and the essential consistency of international law, as well as legal security’.48 The same arguments could be made for other treaty bodies to accord their opinions ‘great weight’, recognizing that there might be more scrutiny by international or national References(p. 442) courts since such bodies would have less eminence in judicial decision-making than the HRC.
Although often contemplated as a facilitative process, a finding of non-compliance may be regarded as a sanction, in the form of ‘naming and shaming’, creating political embarrassment for the relevant State. Such finding in itself does not, however, entail legal consequences—except possibly with respect to internal treaty cooperation between the parties (eg States that violate their commitments will not be elected to treaty organs). Therefore, such findings should not require an explicit treaty basis. Likewise, the introduction of positive measures in the form of incentives, for example of a financial or technological character, should be accepted without express authorization.
The situation is more complicated when it comes to explicit sanctions. IOs have imposed different sanctions with or without an explicit basis, such as suspension of voting rights or representation, or of other rights and privileges of membership.49 The reluctance of States to accept imposition of such sanctions in treaty bodies without an explicit treaty basis is illustrated by Article 18 of the Kyoto Protocol. It establishes that mechanisms ‘entailing binding consequences shall be adopted by means of an amendment to this Protocol’. It is not obvious what kind of measures should be regarded as entailing ‘binding consequences’, but it would be difficult to accept, eg deduction of emissions quotas at a penalty rate, as adopted by the MOP as part of its Marrakesh Accords, without a treaty basis in the form of an amendment.50
Treaty bodies may also need to have a ‘foreign policy’. For instance, the relationship to the IO providing a secretariat must be arranged; there may be a need for a headquarters agreement with the State hosting the secretariat as well as States hosting meetings of the parties and subsidiary bodies; implementation of commitments by States parties may require financial assistance and capacity-building and, hence, involvement by treaty bodies may require arrangements with international financial institutions; and, finally, to the extent that relevant international problems are interconnected, it may be necessary to require cooperation among different treaty bodies and IOs. These needs raise the question of the ‘international legal personality’ of treaty bodies to enter into binding agreements under international law.51
References(p. 443) Treaties establishing treaty bodies will rarely set out a treaty-making capacity. This absence of explicit provisions is, however, also common to most IOs, without preventing them from enjoying such legal capacity. Thus, although some treaties may be interpreted to include a reference to treaty-making capacity for treaty bodies, the main basis for accepting such powers would, as for IOs, be implied powers. Doing so would accord with the flexible approach used by the ICJ in the Reparations case, where it noted that not all subjects of law are identical in their nature or the extent of their rights, which turn instead on ‘the requirements of international life’ and the ‘progressive increase in the collective activities of States’.52 Furthermore, accepting an external capacity for treaty bodies would allow such bodies to possess rights and obligations under international law, but would not itself provide them with a capacity to create new obligations for States parties or third States.
When it comes to treaty bodies resembling IOs in their structure and functions, such as the organs established by MEAs, there seems little reason not to accord them powers at the external level, to the extent such powers are needed to fulfil their functions. The reason MEAs establish treaty bodies instead of formal IOs comes from a desire to accomplish ‘institutional economy’, not to prevent their effectiveness. Such capacities may also be based on subsequent practice by treaty bodies.53 As is demonstrated by the establishment of the Antarctic Treaty Secretariat, the recognition of international legal personality may be highly controversial.54 But the Headquarters Agreement for the Secretariat of the Antarctic Treaty defines the 2010 Antarctic Treaty Consultative Meeting (ATCM) and the Argentine Republic as its parties, implying that the ATCM possesses a treaty-making capacity.
On the other hand, the constitutive treaty or the functions of a treaty body may restrict its treaty-making capacity. For example, the Rome Statute establishes that the ICC’s relationship with the UN shall be regulated ‘through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf’.55 This means that while the consent of the ICC Assembly as a treaty body is necessary, the Court as such, not the Assembly as a treaty body, is party to the agreement with the UN.
The structure and functions of supervisory organs established by treaties on arms control or human rights do not provide the same basis for accepting powers to enter into treaties. There may, however, be a need to coordinate activities, be it between the treaty body and the host IO for the secretariat or between different treaty bodies of the same character, such as harmonizing reporting requirements for States parties to different human rights conventions.56 While a capacity to enter into binding References(p. 444) international agreements in the form of treaties should not readily be accepted, there should be no reason for denying these bodies’ capacity to enter into political understandings or agreements, such as a Memorandum of Understanding (MOU).
Restrictions on treaty body external capacity may also follow from general international law. The ICJ held, for instance, in the Nuclear Weapons advisory opinion that the World Health Organization (WHO) could not, under reference to ‘the principle of speciality’, request an advisory opinion from the ICJ on the legality of the use of nuclear weapons.57
The increasing number of treaty bodies may—in addition to the growth of IOs and courts—contribute to a fragmented international architecture, at the expense of comprehensive policy-making. Inconsistent and contradictory decisions may also occur. On the other hand, the existence of different treaty orders and institutions may have benefits by: providing possibilities for designing the institutional set-up to the specific needs of the problem at hand; giving focus to marginalized interests; and increasing the pool of experience in developing policy-making and jurisprudence.
The coordination problems associated with treaty body proliferation may be met (i) by increased formal or informal cooperation among different treaty regimes and (ii) by taking account of other treaty body decisions as well as those of relevant IOs and international courts. In international environmental law, this challenge has been met by increased cooperation between the COPs of different MEAs58 and between COPs and IOs.59 In human rights, the High Commissioner for Human Rights has taken an initiative to streamline and strengthen the human rights treaty body system.60 As for the ICJ, it takes due account of the practice of human rights treaty bodies, as it did in the Diallo case as well as by respecting the complementarity between it and bodies like the Committee on the Elimination of Racial Discrimination (CERD), which it did in the Georgia v Russian Federation case.61 In practice, different treaty regimes interact in different ways and States and other actors may use the existence of different regimes in strategic ways.62
References(p. 445) A more ambitious approach to international coordination and comprehensive policy- and decision-making would be to merge different treaty bodies, and possibly replace them by IOs and international courts. Thus, a World Environmental Organization has been proposed to overcome the fragmented institutional framework and strengthen international environmental governance.63 In international human rights, the UN High Commissioner for Human Rights has proposed a ‘unified treaty body’,64 while a more ambitious proposal involves establishing a World Court of Human Rights.65 Such proposals have, however, been met by considerable reluctance from States. Less ambitious approaches seem more realistic—at least in the short term.
Treaty bodies are established by treaties, but their manifold structures and functions do not easily fit into the traditional scheme of treaty law. To the extent that their legal powers and capacities, their procedures, and the legal status of their decisions must be determined, the law of treaties has to be supplemented by the law of international institutional law, especially the law of IOs.
International institutional law is characterized by its open-ended nature. It may indeed be asked which parts of it are truly general, as opposed to specific rules for each institution.66 But this also means that this body of law has sufficient flexibility to be adapted to legal issues concerning treaty bodies, taking due account of their explicit foundation in the relevant treaties and their specific functions.
The creation of treaty bodies in various areas of international law raises challenges in ensuring effective and consistent policy- and decision-making. But institutional plurality can also serve important functions in ensuring a design suited to the treaty’s particular purposes, and increasing the pool of knowledge-based practice. There are also remedies available to promote coordination—and even to merge these bodies if needed.
Increased power to treaty bodies does raise issues of accountability and legitimacy of their activities, concerns well known from the work of IOs and international courts. It can be argued that treaty bodies present special dilemmas due to their less formal character. There is, however, nothing in the legal technique of using treaty bodies that by itself provides for more or less political or judicial control. Nor do they provide for more or less protection of rule of law guarantees or human rights than IOs and international courts. Control and protection can be instituted, (p. 446) adjusted for special needs, whether the powers are being exercised by formal IOs, international courts, or treaty bodies.67
Today, States may choose cooperation through treaty bodies for several reasons: costs, effectiveness, protection of State sovereignty, or avoiding the need to locate a new IO or court. In the case of single purpose treaty bodies, such as the supervisory bodies of international human rights, establishing an IO seems hardly necessary. But even in more complex institutional settings, States should be allowed flexibility in designing the format of their cooperation, including the use of treaty bodies when considered appropriate. It will then be for the lawyers to adapt the law, including the law of treaties and international institutional law, to suit such institutional innovations.
- CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn CUP, Cambridge 2005)
- J Brunnée, ‘Coping with Consent: Law-Making under Multilateral Environmental Agreements’ (2002) 15 LJIL 1
- R Churchill and G Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94 AJIL 623
- B Desai, Multilateral Environmental Agreements (CUP, Cambridge 2010)
- F Francioni, ‘Establishment of an Antarctic Treaty Secretariat: Pending Legal Issues’ in D Vidas (ed), Implementing the Environmental Protection Regime for the Antarctic (Kluwer Academic Publishers, Dordrecht 2000) 125
- P Gautier, ‘Institutional Developments in the Antarctic Treaty System’ in T Scovazzi and F Francioni (eds), International Law for Antarctica (2nd edn Kluwer, The Hague 1996) 31
- R Hanski and M Scheinin, Leading Cases of the Human Rights Committee (2nd edn Institute for Human Rights, Åbo Akademi University, Turku 2007)
- M Jacobsson, ‘The Antarctic Treaty System: Future Challenges’ in G Triggs and A Riddell (eds), Antarctica: Legal and Environmental Challenges for the Future (BIICL, London 2007) 1
- S Joseph, J Schultz, and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2nd edn OUP, Oxford 2004)
- W Kälin and J Künzli, The Law of International Human Rights Protection (OUP, Oxford 2009)
- H Keller and G Ulfstein (eds), UN Human Rights Treaty Bodies. Law and Legitimacy (CUP, Cambridge, 2012)
- RO Keohane and DG Victor, ‘The Regime Complex for Climate Change’ (2010) Discussion Paper 2010–33, Harvard Project on International Climate Agreements
- References(p. 447) J Klabbers, ‘Setting the Scene’ in J Klabbers and others (eds), The Constitutionalization of International Law (OUP, Oxford 2009) 1
- M Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 MLR 1
- S Maslen, The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction (OUP, Oxford 2005)
- JE Nijman, The Concept of International Legal Personality (TMC Asser Press, The Hague 2004)
- M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn NP Engel, Kehl 2005)
- M Nowak, K Buchinger, and E McArthur, The United Nations Convention against Torture (OUP, Oxford 2008)
- R Portmann, Legal Personality in International Law (CUP, Cambridge 2010)
- L Rajamani, ‘The Cancun Climate Agreements: Reading the Text, Subtext and Tea Leaves’ (2011) 60 ICLQ 499
- K Raustiala and DG Victor, ‘The Regime Complex for Plant Genetic Resources’ (2004) 58 Intl Org 277
- HG Schermers and NM Blokker, International Institutional Law: Unity within Diversity (5th edn Martinus Nijhoff, Leiden 2011)
- K Scott, ‘Institutional Developments within the Antarctic Treaty System’ (2003) 52 ICLQ 473
- K Scott, ‘International Environmental Governance: Managing Fragmentation through Institutional Connection’ (2011) 12 Melbourne J Intl L 1
- HJ Steiner, R Goodman, and P Alston, International Human Rights in Context: Law, Politics and Morals (3rd edn OUP, Oxford 2008)
- C Tomuschat, Human Rights: Between Idealism and Realism (2nd edn OUP, Oxford 2008)
- G Ulfstein, ‘Do We Need a World Court of Human Rights?’ in O Engdahl and P Wrange (eds), Law at War—the Law as It Was and the Law as It Should Be (Brill, Leiden 2008) 261
- G Ulfstein, ‘Institutions and Competences’ in J Klabbers and others (eds), The Constitutionalization of International Law (OUP, Oxford 2009) 45
- G Ulfstein, ‘International Framework for Environmental Decision-Making’ in M Fitzmaurice and others (eds), Research Handbook on International Environmental Law (Edward Elgar, Cheltenham 2010) 26
- G Ulfstein, T Marauhn, and A Zimmermann, ‘Introduction’ in G Ulfstein and others (eds), Making Treaties Work: Human Rights, Environment and Arms Control (CUP, Cambridge 2007) 3
- G Ulfstein and J Werksman, ‘The Kyoto Compliance System: Towards Hard Enforcement’ in OS Stokke and others (eds), Implementing the Climate Regime. International Compliance (Earthscan, London 2005)
- P Vigni, ‘The Secretariat of the Antarctic Treaty: Achievements and Weaknesses Three Years after Its Establishment’ in G Triggs and A Riddell (eds), Antarctica: Legal and Environmental Challenges for the Future (BIICL, London 2007) 17
- A Watts, International Law and the Antarctic Treaty System (Grotius, Cambridge 1992)
- MA Young, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (CUP, Cambridge 2011)
1 Treaty bodies should be distinguished from forms of cooperation resting on a non-binding foundation, such as the Organization for Security and Co-operation in Europe (OSCE) commitments discussed in Chapter 2.
4 K Scott, ‘Institutional Developments within the Antarctic Treaty System’ (2003) 52 ICLQ 473, 476, 479. See also P Vigni, ‘The Secretariat of the Antarctic Treaty: Achievements and Weaknesses Three years After its Establishment’ in G Triggs and A Riddell (eds), Antarctica: Legal and Environmental Challenges for the Future (BIICL, London 2007) 18; F Francioni, ‘Establishment of an Antarctic Treaty Secretariat: Pending Legal Issues’ in D Vidas (ed), Implementing the Environmental Protection Regime for the Antarctic (Kluwer Academic Publishers, Dordrecht 2000) 125–6.
6 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (adopted 18 September 1997, entered into force 1 March 1999) 2056 UNTS 211, Art 11.
12 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention) (adopted 2 February 1971, entered into force 21 December 1975) 996 UNTS 245 (as amended) Art 8.
13 UNCLOS (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397, Art 319(2). There has, however, been disagreement on the mandate of the Meeting of States Parties to discuss ‘matters of a substantive nature relating to the implementation of the Convention’. ‘Report of the twenty-first Meeting of States Parties’ (29 June 2011) SPLOS/231 –.
14 Maslen (n 9) 272.
15 Decision 1, ‘Final Report of the Nineteenth Antarctic Treaty Consultative Meeting’ (Seoul 8–19 May 1995); P Gautier, ‘Institutional Developments in the Antarctic Treaty System’ in T Scovazzi and F Francioni (eds), International Law for Antarctica (2nd edn Kluwer, The Hague 1996) 44–6.
18 CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn CUP, Cambridge 2005) 163–4; HG Schermers and NM Blokker, International Institutional Law: Unity within Diversity (3rd edn Martinus Nijhoff, Leiden 1995) 744.
19 Additional processes, ie tacit consent by States parties, exist to streamline the process by which amendments to annexes of the treaties or protocols enter into force. For further details see Chapter 14, Part II, 356 et seq.
20 Antarctic Treaty (1 December 1959, entered into force 23 June 1961) 402 UNTS 71, Art IX; A Watts, International Law and the Antarctic Treaty System (Grotius, Cambridge 1992) 25; Gautier (n 15) 42.
21 UNCLOS (n 13) Art 76(8).
24 Churchill and Ulfstein (n 5) 636–43.
25 Decision XV/3, ‘Obligations of Parties to the Beijing Amendment under Article 4 of the Montreal Protocol with respect to hydrochlorofluorocarbons’ (Fifteenth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer 11 November 2003) UNEP/OzL.Pro.15/9, 44–5.
27 See H Keller and L Grover, ‘General Comments of the Human Rights Committee and their Legitimacy’ in H Keller and G Ulfstein (eds), UN Human Rights Treaty Bodies. Law and Legitimacy (CUP, Cambridge 2012).
28 For further discussion of interpretation of the constitutive treaties of IOs see Chapter 22.
29 Churchill and Ulfstein (n 5) 639.
30 See Decision IX/26, ‘President’s statement on the possible way forward on the Ban Amendment’ (Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal on its ninth meeting 27 June 2008) UNEP/CHW.9/39.
32 Churchill and Ulfstein (n 5) 639. More skeptical about the binding character is J Brunnée, ‘COPing with Consent: Law-Making Under Multilateral Environmental Agreements’ (2002) 15 LJIL 1, 24–6.
33 See different views on the significance of institutional practice in interpretation of the UN Charter, JE Alvarez, International Organizations as Law-Makers (OUP, Oxford 2005) 88–9 and J Klabbers, ‘Checks and Balances in the Law of International Organizations’ (2008) 1 Ius Gentium 141, 151–2.
34 Churchill and Ulfstein (n 5) 642–3.
36 Churchill and Ulfstein (n 5) 643.
38 UNFCCC, Decision 23/CP.7, ‘Guidelines for Review under Article 8 of the Kyoto Protocol’ (Report of the Conference of the Parties on its Seventh Sess Marrakesh 29 October–10 November 2001) Annex  and [48(b)(iv)].
39 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, Art 2; Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13, Art 8.
40 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001)  37 ILM 517, Art 15.
41 See generally Keller and Grover (n 27).
44 See R Hanski and M Scheinin, Leading Cases of the Human Rights Committee (2nd edn Institute for Human Rights, Åbo Akademi University, Turku 2007) 23; M Nowak, U.N. Covenant on Civil and Political Rights: CCPR commentary (2nd edn NP Engel, Kehl 2005) XXVII; HJ Steiner, R Goodman, and P Alston, International Human Rights in Context: Law, Politics and Morals (3rd edn OUP, Oxford 2008) 915; M Nowak, K Buchinger, and E McArthur, The United Nations Convention against Torture (OUP, Oxford 2008) 777; S Joseph, J Schultz, and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2nd edn OUP, Oxford 2004) 24; C Tomuschat, Human Rights: between Idealism and Realism (2nd edn OUP, Oxford 2008) 220. See also W Kälin and J Künzli, The Law of International Human Rights Protection (OUP, Oxford 2009) 225.
48 ICJ, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo) (2010) . That said, the ICJ only used HRC practice to corroborate its own interpretation, although it did refer to HRC findings in individual Communications (ie Views) as well as its General Comments as ‘case law’.
49 Schermers and Blokker (n 18) 916–18.
50 G Ulfstein and J Werksman, ‘The Kyoto Compliance System: Towards Hard Enforcement’ in OS Stokke, J Hovi, and G Ulfstein (eds), Implementing the Climate Regime. International Compliance (Earthscan, London 2005) 57–8.
51 See on international legal personality: JE Nijman, The Concept of International Legal Personality (TMC Asser Press, The Hague 2004) and R Portmann, Legal Personality in International Law (CUP, Cambridge 2010).
52 Reparations case (n 16) 174, 178.
53 Churchill and Ulfstein (n 5) 651. On the international legal personality of MEA secretariats see also B Desai, Multilateral Environmental Agreements (CUP, Cambridge 2010) 124–5.
54 Vigni (n 4) 21–2.
55 Rome Statute (n 22) Art 2; see also ibid Art 3(2) on a similar procedure for entering into a Headquarters Agreement.
56 The Secretary-General of the UN called for ‘harmonized guidelines on reporting to all treaty bodies’ in his report ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ UNGA (21 March 2005) UN Doc A/59/2005 .
60 See the website titled, ‘The Treaty Body Strengthening Process’, established by the UN High Commissioner for Human Rights <http://www2.ohchr.org/english/bodies/HRTD/index.htm>.
62 See eg K Raustiala and DG Victor, ‘The Regime Complex for Plant Genetic Resources’ (2004) 58 Intl Org 277–309; RO Keohane and DG Victor, ‘The Regime Complex for Climate Change’ Discussion Paper (2010) Harvard Project on International Climate Agreements.
63 See G Ulfstein, ‘International Framework for Environmental Decision-Making’ in M Fitzmaurice, DM Ong, and P Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar, Cheltenham 2010) 42–3.
66 Amerasinghe (n 18) 16–20.