Registration Vientiane October 2003 1
Origins and Policy Objective of Article 102 of the United Nations Charter • To avoid secret diplomacy and the negative implications that would ensue for international relations (W. Wilson) • Article 18 of the Covenant of the League of Nations Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered 2
United Nations Charter Article 102 • Paragraph 1: Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it • Paragraph 2: No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations 3
Important Note • Registration of an instrument submitted by a member state does not imply a judgment by the Secretariat on the nature of the instrument, the status of a party, or any similar question • It is the understanding of the Secretariat that its action does not confer on the instrument the status of a treaty or an international agreement if it does not already have that status and does not confer on a party a status which it would not otherwise have 4
Implications of Article 102 • Paragraph 1: Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it Member State: legal obligation to submit for registration all international agreements/treaties Secretariat: mandated to publish all agreements registered 5
Implications of Article 102 • Paragraph 2: No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations 6
Implications of Article 102: Invocation • Non-registration precludes the invocation of a treaty or international agreement before any organ of the United Nations • Mere mention of a treaty before a UN organ does not constitute invocation • Reliance on a treaty as the foundation of a party’s claim or counterclaim may constitute invocation but to date no objections by the parties 7
Article 102(2): Sanctions and Penalties • Article 102(2) applies only to parties to an unregistered agreement Third parties are at liberty to invoke the treaty at any time • Not for the UN organ to ex officio raise the issues • Sanctions only applied if a party objects to the reliance on a non-registered agreement 8
Article 102(2): Sanctions and Penalties • Not sufficient under Article 102(2) that an agreement has been registered Registration must take place in accordance with Article 102(1) “as soon as possible” 9
“Treaty” or “International Agreement” under Article 102 The Charter provides no definition • Regulations to give effect to Article 102 (1946) • [Resolution 97 (I), as modified by resolutions 364 B (IV), 482 (V) and 33/141 A, adopted by the GA on 1 December 1949, 12 December 1950 and 18 December 1978 and by GA Resolution 153 of 15 December 1997] Article 1: “whatever its form and descriptive name” • Vienna Convention: “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (Article 1. 1(a)) • 10
“Treaty” or “International Agreement” under Article 102 • • Treaty Convention Exchange of notes/letters Protocol MOU Minutes Unilateral Declaration 11
“Treaty”or “International Agreement”under Article 102 • Unilateral legally binding undertakings e. g. Acceptance of the ICJ’s Compulsory Jurisdiction (Article 36(2) of the ICJ Statute) e. g. Declaration by Egypt regarding the Suez Canal and its operation was effected in 1957 because Government of Egypt considered the declaration a binding international instrument 12
“Treaty” or “International Agreement” under Article 102 Intention to create legal obligations under international law – Imposition of legal obligations on parties at international law • Binding at international law registrable e. g. Entry into force method • Not binding at international law not registrable e. g. Political declaration Diplomatic recognition rescinded “at will” Agreements governed by domestic law • 13
Treaty-Making Capacity • At least two parties treaty-making capacity res ipsa loquitor – Sovereign states – Intergovernmental organizations with treatymaking capacity • Non-state entities – In determining whether an entity is a state, Secretariat guided by relevant GA/SC resolutions – Certain entities which appear to possess characteristics of states are not recognized as states by Secretariat 14
Treaty-Making Capacity • Treaty-making capacity presumes international legal personality exists e. g. European Community • Legal personality does not connote treaty-making capacity e. g. Multinational corporations such as Exxon 15
International Organizations • Intergovernmental organizations (IGO) – Possess treaty-making capacity • Non-governmental organizations (NGO) – Do not possess treaty-making capacity 16
Intergovernmental Organizations Characteristics Consistent with Secretary -General’s Practice • • • Usually established by governmental agreement Include three or more nation states as parties International legal personality distinct from that of the states which established it Constituent instrument of an IGO is often a treaty Organs indicating a permanent autonomous structure for the achievement of definite goals, as mandated by the parties to the constitutive instrument IGOs can be a party to an IGO 17
Intergovernmental Organizations Examples • Universal Postal Union – Established by the Treaty of Berne in 1874 • Comprehensive Test Ban Treaty Preparatory Commission – Established by a resolution adopted by the Meeting of States Signatories in 1996 – Recognized by General Assembly in 1996 Resolution 51/45 18
Non-governmental Organizations Characteristics consistent with Secretary-General’s Practice • International organization not established by intergovernmental agreement (ECOSOC res. 2/3 11 February 1947) Governed by the law of the country where the NGO is incorporated • Includes commercial and private organizations • States not usually members of NGOs • Sometimes entrusted with functions typical to States • e. g. - International Union for Conservation of Nature and Natural Resources - International Committee of the Red Cross 19
Legal Personality of IGO Conventional Approach • Historically, legal status of IGOs raised concern among governments regarding sovereignty issues • International legal personality was rarely conferred e. g. Bilateral Host Agreements (domestic law, not international law) 20
Legal Personality of IGO Current Approach In the last century legal personality regularly conferred by constituent instrument • When legal personality not explicitly conferred – Standard: whether an IGO requires legal personality on the international plane for the exercise and fulfillment of its functions – Reparations Case for Injuries Suffered in the Service of the United Nations – ICJ Adv. Opinion of 11 April 1949 • State parties to an IGO can advise the Secretariat if they do not consider an entity as possessing international legal personality or treaty-making capacity • 21
Treaty Making Capacity Standard: treaty making capacity conferred by reasonable implication as a competence required for IGO to discharge its functions effectively – Limited to subject matter falling within its competence as an IGO • Application: Subjects of International Law – States General Competence – IGOs Principle of “Specialty” – Certain Expenses of the United Nations – ICJ Adv. Opinion of 20 July 1962 • States invest IGOs with powers, the limits of which are a function of the interests of the states • 22
Summary • Treaty/International Agreement – Whatever its form and descriptive name • Parties – Must have treaty-making capacity on the international plane • Intention to create obligations binding under international law 23
Registration • Registration: • Multilateral Treaties: 3 or more parties possessing treaty making capacity • Bilateral Treaties: 2 parties each possessing treaty making capacity (no reservations) - Several states may constitute 1 party e. g. Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Czech Republic, of the other part 24
Registration (Cont’d) • Ex officio registration: any treaty to which the UN is a party shall be registered unilaterally by the UN, including subsequent actions • Subsequent Actions/Modifications – Bilateral – Multilateral 25
Subsequent Actions Multilateral – Ratification/Accession – Termination – Extension to territories – Denunciation – Amendment – No simple signature • Bilateral – Change in parties – Modification of terms/Termination – Change in scope of application • 26
Filing and Recording • Some agreements not subject to registration can be filed and recorded e. g. Agreements voluntarily submitted between – United Nations and Specialized Agencies – United Nations and non-member states – Specialized Agencies and non-member states – 2 or more Specialized Agencies – Specialized Agencies and International Governmental Organizations 27
Requirements for Registration, Filing and Recording • Regulations to give effect to Article 102 - uniform guidelines – Treaty or international agreement within purview of Article 102 – Treaty or international agreement already entered into force – Certifying Statement: “text is a true and complete copy thereof and includes all reservations/declarations made by the parties thereto” • Full title • Date and place of conclusion • Date and method of EIF • All authentic languages 28
Date of Registration • Submission must be complete: all parts of the agreements have to be included - Authentic texts, protocols, annexes, maps, etc. • N. B. Parent agreement or agreements incorporated by reference must already be registered • Date of effect = date of receipt by Secretariat 29
Additional Requirements for Publication • Legible copy of treaty/international agreement • Submitters are encouraged to provide also an electronic copy (G. A. Res. A/RES/51/158 of 10 Jan. 97) – Diskette or CD-ROM – E-mail: Treaty. Registration@un. org • Submitters are encouraged to enclose a courtesy translation in any of the official languages (preferably English/French) 30
Communication by the Secretariat • If successful registration Submitter receives a certificate of registration • If unsuccessful registration Submitter requested to submit missing information/clarify: - Authentic languages - EIF - Missing annexes, protocols etc. • Electronic copy and translations 31
32
Post Registration and Publication 33
Post Registration • Monthly Statement • Publication in United Nations Treaty Series - Available online at www. untreaty. un. org • Publication Obligation: - Article 12 of the Regulations to give effect to Article 102 (see Treaty Handbook p. 32) - Modified by General Assembly Resolution 153 of 15 December 1997 34
United Nations Treaty Series Limited Publication Policy • Exceptions to the rule of publication in extenso: - Assistance and co-operation agreements of limited scope concerning financial, commercial, administrative or technical matters e. g. project agreements World Bank bilateral financial agreements - Agreements relating to the organization of conferences, seminars or meetings - Agreements that are to be published otherwise by the United Nations Secretariat or by a specialized or related agency, e. g. IAEA 35
United Nations Treaty Series Limited Publication Policy (Cont’d) - Lengthy lists of products attached to trade agreements - Agreements of the European Communities are published only in English and French Source: Article 12(2) of the GA regulations to give effect to Article 102 of the UN Charter 36
United Nations Treaty Series • Published in a single series beginning in 1946 • All integral elements of an agreement including protocols, agreed minutes, attachments and maps 37
United Nations Treaty Series Publications • Texts of agreements registered and filed and recorded with the Secretariat • All languages of the registered agreements – Over 140 languages • Translations into English and French, as appropriate 38
UNTS on the Internet http: //untreaty. un. org Online access in English and French to the full texts of treaties and treaty actions with textual component – Declarations, statements, reservations, etc. as published on paper • Search and retrieval capabilities for all treaties registered and filed and recorded with the UN Secretariat – Up to May 1998 • Facility to view, save and print the full texts of treaties in original languages and in English and French • Full texts of multilateral treaties deposited with the Secretary-General awaiting publication in the UNTS also available • 39
Requirements for Faster Publication • Electronic text • Clean, legible hard copy • TRANSLATIONS – into English and French 40
Copyright © 2001 by the United Nations. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of the United Nations 41
Скачать презентацию Registration Vientiane October 2003 1 Origins and
59c0bd6ed2f788c13495aa62b2604135.ppt