Participation in Multilateral Treaties

Deposited with the

UN Secretary-General

Ms. Dina Hamdy, Legal Officer

Treaty Section
Office of Legal Affairs
 Depositary Mandate:
The Treaty Section carries out the
Secretary General’s Role as Depositary
 SG is designated as Depositary of over
500 multilateral treaties

 SG not obligated to accept role but

usually will for:
 Open multilateral treaties of worldwide interest
 Treaties adopted by the General Assembly
 Treaties concluded by a conference convened by a
UN organ
 Regional treaties drawn up within the framework
of the regional commissions
 Secretary General’s Role as
Depositary
 The SG is responsible for ensuring the proper
execution of all treaty actions relating to a treaty and
is guided by:
 Article 77 of the VCLT 1969
- It is not necessary to list depositary functions in a treaty:
they are listed in Art.77
- Final clauses in should be submitted to TS for clearance
 The provisions of the relevant treaty ( final clauses)

 The practice of the SG which predates the VCLT and has

evolved since (Summary of Practice)
 Resolutions of the GA and other UN organs

 Customary international law

 The SG provides advice and assistance relating to the

conclusion of treaties, particularly their final clauses
 The SG also provides interpretations of final clauses
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 Treaty Actions

 Signature Consent to be bound

 Referred to as “Simple Signature” subject to
ratification, acceptance or approval
 Definitive Signature
 Accession
 Declarations, Reservations, Notifications
 Deposit of Instruments

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Signature

 When?
 What States and
entities can sign? Are
there limits on
participation (regional
commission members,
etc.)?
 Who can sign on
behalf of a State?

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 Signature
Who can sign on behalf of a State?
 Head of State
 Head of Government
 Minister for Foreign
Affairs
 Acting or Ad Interim
Head of State or
Government or Minister
for Foreign Affairs

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 Signature
Full Powers

All other representatives wishing to sign

treaties must be in possession of
FULL POWERS

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 Signature
Requirements for full powers
 A valid instrument of full powers must
contain the following elements:
 Authorize signature
 Identify the treaty specifically
 Specify full name and title of individual
authorized to sign
 Issued and signed by Head of State or
Government or MFA or by a person
exercising the power of one of the three
authorities ad interim;
 Dated
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Signature
Venue
 Appointment for
signature in the Treaty
Section
 Facsimile No: 1 (212)

963-3693
 Phone No: 1 (212)

963-5047

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 Signature
Annual Treaty Events
 Millennium Summit (2000)
 Focus 2001: Women and Children
 Treaty Event: Multilateral Treaties on
Terrorism (10 to 16 November 2001)
 Focus 2002: Sustainable Development
 Focus 2003: Treaties Against Transnational
Organized Crime and Terrorism
 Focus 2004: Treaties on the Protection of
Civilians
 Focus 2005: Responding to Global
Challenges
 Focus 2006: Crossing Borders
 Focus 2007: Towards Universal Participation
and Implementation
 Treaty Event 2008: Dignity and Justice for
All of Us
 Treaty Events 2009 and 2010: Towards
Universal Participation and Implementation

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 Simple Signature
Legal Implications

 Simple signature means signature which is subject

to ratification.
 No positive legal obligations under the treaty upon
signature.
 Indicates a State’s intention to take steps to
express its consent to be bound.
 Creates an obligation in the period between
signature and ratification/acceptance/approval to
refrain in good faith from acts that would be
contrary to the object and purpose of a treaty.
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 Signature
Review

 Is the treaty open for signature?

 Does the treaty allow your State to sign?
 Who will sign?
 Are full powers required?
 Appointment for signature.

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 Signature
Problem 1

 Your Government would like to sign

the International Convention for the
Protection of all Persons from
Enforced Disappearance. You have
been presented with draft full
powers for review. What do you
advise?
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 Signature
Model Instrument of Full Powers
Full Powers
(To be signed by the Head of State, Head of Government or Minister
for Foreign Affairs)

I, [name and title of the Head of State, Head of Government or

Minister for Foreign Affairs],
HEREBY AUTHORISE [name and title] to sign the [title of treaty] on
behalf of the Government of [State].

Done at [place] on [date].

[Signature and title]

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Consent to be Bound
To become party to
a treaty,
a State must
express its
consent to be bound
by a treaty at
international law.

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Consent to be Bound
How?

 Definitive Signature
 Simple Signature
followed by Ratification,
Acceptance or Approval
 Accession

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 Consent to be Bound
How?
Succession An undertaking at
international law
whereby a State
assumes the rights
and obligations
under a treaty
previously applied to
its territory by a
predecessor State.

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 Consent to be Bound
Domestic “Ratification”
 A State is not a party to a treaty by simply
“ratifying” a treaty domestically.

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 Consent to be Bound
Domestic “Ratification”

 States must ensure domestic legislative

requirements are completed prior to
consenting to be bound;
 State cannot claim that its consent to be
bound is invalid due to violation of its
internal law (VCLT, art. 46(1)).

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 Consent to be Bound
Basic requirements for a valid instrument
 Identify treaty
 Declaration of undertaking
 Expression of intent of the Government to be
bound by the treaty and to undertake faithfully to
observe and implement its provisions
 Issued and signed
 Head of State or Government or the MFA or
by a person exercising the power of one of the
three authorities ad interim;
 Dated
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 Consent to be Bound
Problem 2
 The following document has been
lodged for deposit with the
Secretary-General. Should this
document be accepted in deposit
as a valid binding instrument?

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 Consent to be Bound
Model Instrument of Ratification, Acceptance or Approval

Ratification/Acceptance/Approval
(To be signed by Head of State, Head of Government or Minister for Foreign Affairs)

WHEREAS the [title of treaty] was adopted at [place] on [date],

AND WHEREAS the said [treaty] has been signed on behalf of the Government
of [State] on [date],

NOW THEREFORE I, [name and title of the HS, HG or MFA] declare that the
Government of [State], having considered the above [treaty],
[ratifies/accepts/approves] the same and undertakes faithfully to perform
and carry out the stipulations therein contained.

IN WITNESS WHEREOF, I have signed this instrument of

[ratification/acceptance/approval] at [place] on [date].

[Signature]

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 Consent to be Bound
Problem 3
 The following document has been
lodged for deposit with the
Secretary-General. Should this
document be accepted in deposit
as a valid binding instrument?

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 Consent to be Bound
Additional requirements for a valid instrument

 Optional Declarations
 Mandatory Declarations

 Notifications

 Reservations
 Authorized?
 Prohibited?
 Silent?

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 Consent to be Bound
Optional and Mandatory Declarations
 Legally binding and must be included in
a duly signed instrument of ratification,
acceptance, etc. or signed in their own
right.
 Often such declarations must be made
upon ratification, acceptance, approval
or accession.

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 Consent to be Bound
Optional Declarations
 E.g.: International Covenant on Civil and Political
Rights
 Article 41: A State Party may at any time declare
that it recognizes the competence of the Human
Rights Committee to receive and consider
communications to the effect that a State Party
claims that another State Party is not fulfilling its
obligations under the Covenant.
 E.g.: Article 36, paragraph 2 of the Statute of
the ICJ recognizing as compulsory the
jurisdiction of the Court.

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 Consent to be Bound
Mandatory Declarations

 E.g.: Optional Protocol to the Convention on the

Rights of the Child on the involvement of
children in armed conflict, 2000

 Article 3(2): Each State party shall deposit a binding

declaration upon ratification of or accession to this
Protocol that sets forth the minimum age at which it
will permit voluntary recruitment into its national
armed forces and a description of the safeguards that
it has adopted to ensure that such recruitment is not
forced or coerced.

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 Consent to be Bound
Notifications
 Notifications typically provide information as required
under a treaty.
 Distinction between declarations and notifications is not
always made.
 E.g.: International Convention for the Suppression of the
Financing of Terrorism
 Article 7 (3): Upon ratifying, accepting, approving or acceding
to this Convention, each State Party shall notify the SG of the
UN of the jurisdiction it has established in accordance with
paragraph 2 (Note that a State Party MAY establish jurisdiction
over specified offences in paragraph 2).

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 Consent to be Bound
Notifications
 E.g.: UN Convention Against Transnational
Organized Crime

 Notification under art. 5 (3): States whose domestic law

requires an additional element than the offences established in
accordance with the article must so notify the SG.
 Notification under art. 16(5): For States that make
extradition conditional on the existence of a treaty, shall inform
the SG whether they will take this Convention as the legal basis
for cooperation on extradition with other States Parties to this
Convention.
 Notification under art. 18 (13): Designation of a central
authority for purposes of receiving mutual legal assistance.
 Notification under art. 18 (14): Designation of language.
 Notification under art. 31(6): Designation of an authority
that can assist other states in developing measures to prevent
transnational organised crime.
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 Consent to be Bound
Reservations
 A reservation is any statement - however phrased or
named - which purports to exclude or modify the
legal effect of a treaty provision.

 Enable a state to participate in a treaty in

which it would not be able to participate due to
an unacceptable provision or provisions.

 Legally binding and must be included in a duly signed

instrument of ratification, acceptance, etc. or signed
in their own right.

 Must be done upon signature or deposit. If done

upon signature must be confirmed upon ratification.
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 Reservations

 Modification/Withdrawal possible at any time,

but must be signed by Head of State, Head of
Government or Minister for Foreign Affairs.
 Treaties may be silent as to reservations (for
example, most Human Rights treaties).
 Certain reservations may be allowed/prohibited.
 Or reservations may be altogether prohibited
(Stockholm Convention, Rome Statute of the
International Criminal Court).

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 Consent to be Bound
Review

 Definitive Signature
 Is the treaty open for signature?
 Does the treaty allow your State to sign?
 Who will sign?
 Are full powers required?

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 Consent to be Bound
Review

 Signatory Ratification,
Acceptance or
Approval
 Non-signatory Accession
 Conditions for Accession?
 Declarations/Notifications?
 Reservations?

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 Consent to be Bound
Problem 4
 State B would like to become a party to
the Optional Protocol to the Convention on
the Rights of the Child on the Involvement
of Children in Armed Conflict. State B has
signed the Convention on the Rights of
the Child, but has not ratified it. You are
presented with an instrument. What do
you advise?

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 Consent to be Bound
Problem 5
 State B would like to become party to the
Convention on Prohibitions or Restrictions
on the Use of Certain Conventional
Weapons which may be deemed to be
Excessively Injurious or to have
Indiscriminate Effects, with Protocols I, II,
III, IV and V, (Geneva, 10 October 1980).
The relevant provisions of the Convention
follow. The instrument below has been
submitted for deposit. As a lawyer in your
treaty office, what do you advise?
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Deposit of Instruments
Place and Method

 Instruments become
effective only when
deposited with SG at UNHQ.
 Or by personal delivery to
the SG or to his
representative - the Legal
Counsel or the Chief of the
Treaty Section.
 By mail, by facsimile or by
e-mail.

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Deposit of Instruments
Place and Methods

 Appointment for
deposit in the Treaty
Section
 Facsimile No: 1 (212)
963-3693
 Phone No:1 (212) 963-
5047

 During Annual Treaty

Event

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Deposit of Instruments
Date of Deposit
 Date when instrument is
received at UNHQ either
by SG, the Legal Counsel,
the Treaty Section or by
the Mail Unit;
 Deposit will produce its
effect in accordance with
provisions of a treaty.
 Important when a State
is calculating EIF for
participation in meetings
or elections.
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