Strengthening the Strengthening the International Rule of Law:International Rule of Law:Contribution of the Treaty Contribution of the Treaty

Section of the Office of Section of the Office of Legal AffairsLegal Affairs

By Palitha T.B. KohonaBy Palitha T.B. Kohona

An Overview

The Secretary-General (S-G) observed in 2000:The Secretary-General (S-G) observed in 2000:• "The expansion of the rule of law in "The expansion of the rule of law in

international relations has been the foundation international relations has been the foundation of much of the political, social and economic of much of the political, social and economic progress achieved in recent years. progress achieved in recent years. Undoubtedly, it will facilitate further progress Undoubtedly, it will facilitate further progress in the new millennium.”in the new millennium.”

• "The new millennium is an appropriate "The new millennium is an appropriate occasion to reaffirm the primary objectives of occasion to reaffirm the primary objectives of our Organization and focus on them anew. our Organization and focus on them anew. Establishing the rule of law in international Establishing the rule of law in international affairs is a central priority.”affairs is a central priority.”

In the next 30 or 40 minutes, I will explore the In the next 30 or 40 minutes, I will explore the contribution that the Treaty Section has made to contribution that the Treaty Section has made to realize this objective.realize this objective.

What is the contribution of the Treaty Section?What is the contribution of the Treaty Section?

The S-G’s ThoughtsThe S-G’s Thoughts

Overview of Treaty Section MandatesOverview of Treaty Section Mandates To strengthen the international rule of law by:To strengthen the international rule of law by:

1.1. Registering and publishing treaties (Article 102 of the Registering and publishing treaties (Article 102 of the UN UN CharterCharter););

• The Secretariat is responsible for registering all treaties The Secretariat is responsible for registering all treaties under Art. 102 of the Charter. under Art. 102 of the Charter.

• Publishing treaties.Publishing treaties.• The Treaty Section discharges this mandate. The Treaty Section discharges this mandate.

2.2. Discharging the S-G’s depositary functions relating to over Discharging the S-G’s depositary functions relating to over 500 multilateral treaties;500 multilateral treaties;

• The S-G is the depository of over 500 multilateral The S-G is the depository of over 500 multilateral Treaties.Treaties.

• The Treaty Section discharges his responsibilities.The Treaty Section discharges his responsibilities.• These treaties cover the entire spectrum of human These treaties cover the entire spectrum of human

interaction.interaction.• Human Rights, Humanitarian Affairs, Trade, the Human Rights, Humanitarian Affairs, Trade, the

Environment, Law of the Sea, Space, Disarmament, Environment, Law of the Sea, Space, Disarmament, Organized Crime, Terrorism, Drugs, etc.Organized Crime, Terrorism, Drugs, etc.

3.3. Providing legal advice and technical assistance to States.Providing legal advice and technical assistance to States.• Advice and assistance is provided to the UN Secretariat, Advice and assistance is provided to the UN Secretariat,

members of the UN family, and Treaty bodies.members of the UN family, and Treaty bodies.• Also to Member States and Capitals.Also to Member States and Capitals.

Registration of TreatiesRegistration of Treaties

1.A little bit about registration:1.A little bit about registration:

Art. 102 requires all Member States to register Art. 102 requires all Member States to register their treaties and agreements;their treaties and agreements;

This is a mandatory obligation;This is a mandatory obligation; Section receive, analyze, process, register, and Section receive, analyze, process, register, and

record treaties (Article 102 of the UN Charter);record treaties (Article 102 of the UN Charter); Section publishes the Section publishes the Monthly Statement of Monthly Statement of

TreatiesTreaties, also on the Internet; and, also on the Internet; and

2.Section registers approximately 4000 2.Section registers approximately 4000 treaties and related actions annually. treaties and related actions annually.

PublicationPublication

All registered treaties must be published;All registered treaties must be published; Except those falling under Art.12 of the Except those falling under Art.12 of the

regulationsregulations Registered treaties are published in United Registered treaties are published in United

Nations Treaty Series (UNTS);Nations Treaty Series (UNTS); Publishes the Cumulative Index to UNTS; Publishes the Cumulative Index to UNTS; All publications available on the Internet All publications available on the Internet

(untreaty.un.org).(untreaty.un.org).

Depositary FunctionsDepositary Functions Discharge the functions of the S-G as depositary Discharge the functions of the S-G as depositary

of over 500 multilateral treaties;of over 500 multilateral treaties; Information on all treaty actions are Information on all treaty actions are

communicated to States by depositary communicated to States by depositary notifications (CNs) in hard copy and by e-mail;notifications (CNs) in hard copy and by e-mail;

Publish annually Publish annually Multilateral Treaties Deposited Multilateral Treaties Deposited with the Secretary-General with the Secretary-General in hard copy, also in hard copy, also available on the Internet and on CD-ROM.available on the Internet and on CD-ROM.• Contains information on signatures, ratifications, Contains information on signatures, ratifications,

accession, reservations, declarations etc.accession, reservations, declarations etc.• This is the most comprehensive document of this kind.This is the most comprehensive document of this kind.• Internet version updated daily.Internet version updated daily.

Legal and Technical AssistanceLegal and Technical Assistance

Provide legal and technical advice and Provide legal and technical advice and assistance on the registration function, assistance on the registration function, depositary practice and treaty law;depositary practice and treaty law;• to Member States, members of the UN family, treaty to Member States, members of the UN family, treaty

bodies etc.bodies etc.

Provide technical assistance through Provide technical assistance through training seminars and publicationstraining seminars and publications• Treaty HandbookTreaty Handbook, , Handbook of Final ClausesHandbook of Final Clauses, , Summary Summary

of Practiceof Practice, Legal Technical Assistance website, etc., Legal Technical Assistance website, etc.• All publications are available on the Internet.All publications are available on the Internet.

Registration MandateRegistration Mandate Why are Treaties registered and published?Why are Treaties registered and published?

• Article 102 of the UN CharterArticle 102 of the UN Charter All treaties concluded by Member States are required to be All treaties concluded by Member States are required to be

submitted for registration. submitted for registration. The Secretariat is obliged to publish them.The Secretariat is obliged to publish them. Except treaties falling under Art.12 of the Regulations.Except treaties falling under Art.12 of the Regulations.– this provides a discretion not to publish certain obligations of this provides a discretion not to publish certain obligations of

treaties.treaties.– mostly technical agreements, e.g., World Bank agreements, IMF mostly technical agreements, e.g., World Bank agreements, IMF

Agreements, Bilateral Technical Assistance Agreements, Agreements, Bilateral Technical Assistance Agreements, Agreements published elsewhereAgreements published elsewhere

• Regulations to Give Effect to Article 102 elaborate on the Regulations to Give Effect to Article 102 elaborate on the publication functionpublication function

Last comprehensively revised in 1979. Last comprehensively revised in 1979. • See UNTS vol. 859/860, p. viii. See UNTS vol. 859/860, p. viii.

Indirectly modified by a General Assembly Resolution in Indirectly modified by a General Assembly Resolution in 1998.1998.

Guides the registration and publication processes.Guides the registration and publication processes.

Reflects the vision of President Woodrow Reflects the vision of President Woodrow

Wilson:Wilson:• Secret diplomacy was the main cause of war;Secret diplomacy was the main cause of war;• He sought to eliminate secret diplomacy to He sought to eliminate secret diplomacy to

advance the cause of peace.advance the cause of peace.

League of Nations Covenant (Article 18)League of Nations Covenant (Article 18)• No treaty would be binding unless registered;No treaty would be binding unless registered;

Article 102 in the Charter continues the Article 102 in the Charter continues the tradition of the Covenant - but the tradition of the Covenant - but the sanction for non-registration is not sanction for non-registration is not obvious.obvious.

Why Register?

1.1. What is a Treaty that should be registered?What is a Treaty that should be registered?2.2. Broad definition adopted of the term "treaties or Broad definition adopted of the term "treaties or

international agreements". international agreements". 3.3. This broad definition is a key reason for the high number This broad definition is a key reason for the high number

of registrations. of registrations.– An instrument between two entities capable of concluding An instrument between two entities capable of concluding

treaties.treaties.– It should be governed by international law.It should be governed by international law.– Enforceable at international law.Enforceable at international law. An agreement between two companies is not registerable.An agreement between two companies is not registerable. Some entities are not recognized as States by the UN (e.g., Some entities are not recognized as States by the UN (e.g.,

Taiwan).Taiwan).• Characterization adopted by negotiating parties is not the Characterization adopted by negotiating parties is not the

determining factor. determining factor. • The instrument itself could be called a treaty, convention, The instrument itself could be called a treaty, convention,

agreement, MOU, exchange of notes, etc.agreement, MOU, exchange of notes, etc.• Secretariat examines each instrument submitted to ensure it Secretariat examines each instrument submitted to ensure it

meets the essential criteria for registration.meets the essential criteria for registration.• All subsequent actions are also required to be registered. All subsequent actions are also required to be registered.

Extensions, amendments, denunciations, etc.Extensions, amendments, denunciations, etc.• Includes bilaterals and multilaterals. Includes bilaterals and multilaterals.

What is a “Treaty”

Increase in Registrations Increase in Registrations and and Actions Submitted for RegistrationActions Submitted for Registration

There are a number of reasons for this:There are a number of reasons for this:• New Countries which have joined the international New Countries which have joined the international

community recently have been enthusiastic about community recently have been enthusiastic about concluding treatiesconcluding treaties• In 1945, there were 51 States- today, 191.In 1945, there were 51 States- today, 191.• Number of countries in the international community has Number of countries in the international community has

increased:increased: Decolonization process in the 50s and the 60s.Decolonization process in the 50s and the 60s. Countries which broke away from the former Soviet Union / Countries which broke away from the former Soviet Union /

Eastern bloc countries (post-1989), former Yugoslavia, etc.Eastern bloc countries (post-1989), former Yugoslavia, etc. Increase in international law-making in the last 15 yearsIncrease in international law-making in the last 15 years

• E.g.: multilateral conventions on the environment, human E.g.: multilateral conventions on the environment, human rights, disarmament, humanitarian issues, etc.rights, disarmament, humanitarian issues, etc.

• Resulted in the need to registerResulted in the need to register multilateral treaty actions multilateral treaty actions related to these treaties.related to these treaties.

• Certain special international developmentsCertain special international developments• Return of Hong Kong andReturn of Hong Kong and Macao to China, readmission of Macao to China, readmission of

Yugoslavia to the UN.Yugoslavia to the UN.• Increasing awareness of the need to register treatiesIncreasing awareness of the need to register treaties

• The Legal Counsel circulates a note at the beginning of each The Legal Counsel circulates a note at the beginning of each year.year.

According to Article 102:According to Article 102:

• A non-registered treaty cannot be invoked before A non-registered treaty cannot be invoked before a UN body, including the International Court of a UN body, including the International Court of Justice (ICJ);Justice (ICJ);

• This provision remains to be judicially analyzed;This provision remains to be judicially analyzed;• The ICJ, for example, has had non-registered The ICJ, for example, has had non-registered

treaties before it;treaties before it;• However, it appears not to have based a decision However, it appears not to have based a decision

on a non-registered treaty.on a non-registered treaty. However, not all Member States register their However, not all Member States register their

treaties:treaties:• Mostly, a question of resources, especially in Mostly, a question of resources, especially in

developing countries;developing countries;• Not an absence of political will;Not an absence of political will;• Also defense and security agreements.Also defense and security agreements.

Is there a sanction for not registering?

Pursuant to Article 102, Pursuant to Article 102, the United Nations Treaty the United Nations Treaty

Series (UNTS)Series (UNTS) has been published continuously has been published continuously since 1946:since 1946:• Like the Like the League of Nations Treaty SeriesLeague of Nations Treaty Series; ; • It contains over 50,000 treaties, and a similar number of It contains over 50,000 treaties, and a similar number of

related actions; related actions; • There are over 2,200 printed volumes, in 142+ There are over 2,200 printed volumes, in 142+

languages, and over 1,000,000 pages.languages, and over 1,000,000 pages. There are only two publications mandated by the There are only two publications mandated by the

Charter;Charter;• One is the S-G’s annual report;One is the S-G’s annual report;• The other is the UNTS;The other is the UNTS;

All published volumes are available on the All published volumes are available on the Internet;Internet; Internet version gets 1.7 million hits per month.Internet version gets 1.7 million hits per month.

Publication Statistics

Publication on the InternetPublication on the Internet Volumes of the UNTSVolumes of the UNTS

• In hard copy, over 2200 total volumes have been published; andIn hard copy, over 2200 total volumes have been published; and• On the Treaty Section website, the full text of treaties in over 2200 On the Treaty Section website, the full text of treaties in over 2200

volumes.volumes.

Monthly Statements are also available on the website within a Monthly Statements are also available on the website within a month after registration month; month after registration month; • include treaty reference information such as the name of the treaty, include treaty reference information such as the name of the treaty,

the parties, the entry into force information, etc. the parties, the entry into force information, etc.

The League of Nations Treaty Series is now available on the The League of Nations Treaty Series is now available on the Internet. Internet.

All Depositary Notifications are available on the UNTC. All Depositary Notifications are available on the UNTC.

Fee-based service for certain categories of users: Fee-based service for certain categories of users: • However, free for Missions, capitals, and members of the UN family, However, free for Missions, capitals, and members of the UN family,

NGOs and developing countries.NGOs and developing countries.

Encourage the dissemination of international law: Encourage the dissemination of international law:

• Treaties are the main source of international law;Treaties are the main source of international law;• They provide the key foundation for the They provide the key foundation for the

development of the international rule of law;development of the international rule of law;• They serve as precedents and contribute to the They serve as precedents and contribute to the

development of legal principles.development of legal principles.• You do not need to invent the wheel when You do not need to invent the wheel when

negotiating a new treaty.negotiating a new treaty.• Can use an existing precedent.Can use an existing precedent.• Legal principles develop when the same concept goes Legal principles develop when the same concept goes

repeatedly into different treaties.repeatedly into different treaties.• E.g. the concept of fair, equitable and prompt E.g. the concept of fair, equitable and prompt

compensation for expropriated property.compensation for expropriated property.Repeatedly used in bilateral investment protection Repeatedly used in bilateral investment protection

agreements.agreements.

Objectives of Publication

Objectives of PublicationObjectives of Publication Remove mystique surrounding treaties:Remove mystique surrounding treaties:

• Treaties used to be concluded in distant Treaties used to be concluded in distant capitals with pomp and pageantry;capitals with pomp and pageantry;

• Now accessible to a wider audience;Now accessible to a wider audience;• Particularly as a result of publishing on the Particularly as a result of publishing on the

Internet;Internet;• Wider access important, given the impact on Wider access important, given the impact on

the lives of ordinary peoplethe lives of ordinary people::• E.g., environmental treaties, human rights E.g., environmental treaties, human rights

treaties, ILO conventions.treaties, ILO conventions.• May be seen also as an important step in the May be seen also as an important step in the

democratisation of treaty-making.democratisation of treaty-making.• Increase transparency – a key objective of Increase transparency – a key objective of

Article 102.Article 102.

Objectives of PublicationObjectives of Publication Participation of civil society:Participation of civil society:

• The increase in treaty-making, especially The increase in treaty-making, especially multilateral treaties, has in turn encouraged multilateral treaties, has in turn encouraged non-state entities such as NGOs and non-state entities such as NGOs and individuals to play a more proactive role in the individuals to play a more proactive role in the negotiation of treaties and implementation of negotiation of treaties and implementation of treaty obligations; treaty obligations;

- wider access is a great benefit to them.- wider access is a great benefit to them.

• Assists in the further democratisation of Assists in the further democratisation of international law-making processes. international law-making processes.

Backlog in publication of the UNTS reduced from 11 Backlog in publication of the UNTS reduced from 11 years in 1997 to less than 11 months today;years in 1997 to less than 11 months today;• Through a combination of managerial and technological innovations.Through a combination of managerial and technological innovations.• In 1996, the GA endorsed the programme of work through a resolution In 1996, the GA endorsed the programme of work through a resolution

on the “Electronic Treaty Database”.on the “Electronic Treaty Database”. Requested “… the S-G to provide all necessary Requested “… the S-G to provide all necessary

assistance, including translation services, to implement assistance, including translation services, to implement the plan to eliminate the historical backlog”.the plan to eliminate the historical backlog”.• Treaty Section confronted a range of challenges, including Treaty Section confronted a range of challenges, including

securing financial resources.securing financial resources.• Training in technology.Training in technology.• Working in teams.Working in teams.• Taking responsibility for decisions.Taking responsibility for decisions.• Reduction of reviews.Reduction of reviews.• Insistence that service providers stick to contractual terms.Insistence that service providers stick to contractual terms.• Eliminating redundant steps.Eliminating redundant steps.• Thoroughly computerized the Section.Thoroughly computerized the Section.

Training in modern technology.Training in modern technology.

Backlog Drastically ReducedBacklog Drastically Reduced

S-G is designated as Depositary of over 500 multilateral S-G is designated as Depositary of over 500 multilateral treaties;treaties;

S-G not obligated to accept role but usually will for:S-G not obligated to accept role but usually will for:• Open multilateral treaties of a universal nature;Open multilateral treaties of a universal nature;• Treaties adopted by the General Assembly; Treaties adopted by the General Assembly; • Treaties concluded by a conference convened by a Treaties concluded by a conference convened by a

UN organ;UN organ;• Regional treaties drawn up within the framework of Regional treaties drawn up within the framework of

the regional commissions; the regional commissions; • Exceptions: S-G will serve as depositary as he deems Exceptions: S-G will serve as depositary as he deems

appropriate e.g. appropriate e.g. Agreement on Succession Issues.Agreement on Succession Issues.

Depositary MandateS-G’s Role as Depositary

The S-G is responsible for The S-G is responsible for ensuring the proper ensuring the proper

executionexecution of all treaty actions relating to a treaty and of all treaty actions relating to a treaty and is guided by:is guided by:• Article 77 of the VCLT 1969;Article 77 of the VCLT 1969;

- - It is not necessary to list depositary functions in a treaty- It is not necessary to list depositary functions in a treaty- they they are listed in Art.77;are listed in Art.77;- This is why he insists on clearing final clauses in all - This is why he insists on clearing final clauses in all Treaties.Treaties.

• Provisions of the relevant treaty (Provisions of the relevant treaty (final clausesfinal clauses););• His practice which pre-dates the VCLT and has evolved since His practice which pre-dates the VCLT and has evolved since

((Summary of PracticeSummary of Practice););• Resolutions of the GA and other UN organs;Resolutions of the GA and other UN organs;• Customary international law. Customary international law.

The S-G provides advice and assistance relating to the conclusion The S-G provides advice and assistance relating to the conclusion of treaties, particularly their final clauses;of treaties, particularly their final clauses;

The S-G also provides interpretations of final clauses.The S-G also provides interpretations of final clauses. The S-G’s practice has evolved sometimes in ways inconsistent The S-G’s practice has evolved sometimes in ways inconsistent

with the VCLT 1969.with the VCLT 1969. E.g. Accepting reservations after the ratification, accession, etc.E.g. Accepting reservations after the ratification, accession, etc.

S-G’s Role as Depositary

Multilateral Treaties Deposited with the S-GMultilateral Treaties Deposited with the S-G is an annual publication of over 1,000 is an annual publication of over 1,000 printed pages:printed pages:• The most comprehensive collection in the world;The most comprehensive collection in the world;• Details the status of the multilateral treaties deposited Details the status of the multilateral treaties deposited

with the S-G:with the S-G: Signatures, ratifications, declarations, reservations, Signatures, ratifications, declarations, reservations,

etc.etc.• Electronic version updated daily.Electronic version updated daily.

Depositary Notifications (CNs):Depositary Notifications (CNs):• Sent daily in hard copy and by e-mail.Sent daily in hard copy and by e-mail.

Both available on the Internet at Both available on the Internet at hhttp://untreaty.un.orgttp://untreaty.un.org..

Depositary Publications

In 2000, the Millennium Year, a campaign was In 2000, the Millennium Year, a campaign was launched to encourage wider participation in the launched to encourage wider participation in the multilateral treaties deposited with the S-G:multilateral treaties deposited with the S-G:• A key awareness-raising effort;A key awareness-raising effort;• Many treaties negotiated with meticulous care and Many treaties negotiated with meticulous care and

adopted with great enthusiasm had, after many years, adopted with great enthusiasm had, after many years, not achieved universal participation;not achieved universal participation;

• Some, not even in force.Some, not even in force. The Millennium Summit Treaty EventThe Millennium Summit Treaty Event::

• Very successful - 274 treaty actions by 84 States, mostly Very successful - 274 treaty actions by 84 States, mostly by heads of State and Government.by heads of State and Government.

• S-G decided to hold such an event each year.S-G decided to hold such an event each year.

Encouraging Wider Encouraging Wider ParticipationParticipation

Since then:Since then: Focus 2001 - Rights of Women and Children;Focus 2001 - Rights of Women and Children; Treaty Event on Treaties relating to Terrorism - Treaty Event on Treaties relating to Terrorism - in in

response to the terrorist attacks on the US, a response to the terrorist attacks on the US, a treaty event was held in November 2001;treaty event was held in November 2001;

Focus 2002 - Sustainable DevelopmentFocus 2002 - Sustainable Development was was organised to coincide with the WSSD; organised to coincide with the WSSD;

Focus 2003Focus 2003 - T - Treaties Against Transnational reaties Against Transnational Organized Crime and Terrorism; Organized Crime and Terrorism;

Focus 2004Focus 2004 – – Protection of Civilians;Protection of Civilians; Focus 2005Focus 2005 – – Responding to Global Challenges – Responding to Global Challenges –

United Nations at 60United Nations at 60..

Encouraging Wider Participation

Assistance provided to countries to become party Assistance provided to countries to become party to treaties (signature, ratification/accession, etc.).to treaties (signature, ratification/accession, etc.).

TS published TS published Treaty HandbookTreaty Handbook to assist States in to assist States in registering treaties and becoming party (registering treaties and becoming party (available available in all UN official languages and on the Internet);in all UN official languages and on the Internet);

Handbook on Final ClausesHandbook on Final Clauses is also available; is also available; These Handbooks are supplemented with training These Handbooks are supplemented with training

sessions for legal officers assisting governments sessions for legal officers assisting governments and others:and others:• 6 training sessions have been conducted at UN HQ;6 training sessions have been conducted at UN HQ;• 4 regional sessions (Laos, ASEAN, CARICOM, Vietnam- 4 regional sessions (Laos, ASEAN, CARICOM, Vietnam-

Now Geneva);Now Geneva);• Multiple requests for training (The main problem, Multiple requests for training (The main problem,

however, is funding).however, is funding).

TrainingTraining

Copyright 2004 by the United Nations. All Copyright 2004 by the United Nations. All rights reserved. Printed in the United rights reserved. Printed in the United States of America. No part of this States of America. No part of this publication may be reproduced, stored in a publication may be reproduced, stored in a retrieval system, or transmitted in any retrieval system, or transmitted in any form by any means, i.e., electronic, form by any means, i.e., electronic, mechanical, photocopying, recording, or mechanical, photocopying, recording, or otherwise, without the written permission otherwise, without the written permission of the United Nations.of the United Nations.

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