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Registration of Treaties under Article 102 of the Charter of the United Nations

Seminar on the undertaking of Treaty Actions for Treaties

November 11-12 2009

UN Headquarters

Muriel Djella OgandagaArturo Requesens

Associate Legal OfficersTreaty Section

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Agenda

• Article 102 of the UN Charter - Mandate

• Definition of Treaty and Treaty-making Capacity

• Registration procedures for Member States

• Publication of Treaties and Subsequent Actions

• Legal Technical Assistance offered by OLA (including internet databases)

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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.

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Article 102: Origins and Policy Objective

• To avoid secret diplomacy (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.

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Implications of Article 102

• Each Member State: must register all international agreements/treaties.

• United Nations Secretariat: must publish all agreements registered.

This function is performed at UN HQ by the Office of Legal Affairs, Treaty Section.

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Article 102(2): Sanctions and Penalties

• No party to a non-registered agreement may invoke that treaty or agreement before any organ of the United Nations (e.g., the International Court of Justice).

• The Article 102 sanction seems to apply only to the parties of an unregistered agreement. Third parties have invoked unregistered

treaties; parties in the middle of an ICJ proceeding have registered an agreement used in a defense and the ICJ allowed.

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When must a treaty be registered?

• Article 102(1): “as soon as possible”

• Secretariat’s practice: the OLA Treaty Section encourages all Member States to submit their treaties for registration – including those from any time period (no deadline for registration).

– This furthers Article 102’s objective to encourage greater transparency and OLA’s mandate to promote the rule of law

– Also results in a greater number of treaties in the UN Treaty Series, and therefore a better resource for Member States of the UN

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Important Note

Registration does not imply a judgment by Secretariat:

• nature of the instrument, • status of a party, or any similar question

Secretariat’s action/inaction does not confer or take away:• status of a treaty/ international agreement • status of a party

Agreement/entity MUST possess status at international law.

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Summary

Member State: must submit for registration all international agreements/treaties

Secretariat: must publish registered agreements

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Definition of “Treaty” or“International Agreement”

UN Charter: no definition

Regulations to give effect to Article 102 (GA 1946)

Article 1:“whatever its form and descriptive name”

Vienna Convention, 1969, Article 2(1)(a) : “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.

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Treaty Convention Exchange of notes/letters Protocol MOU Minutes Unilateral Declaration

Article 102“Treaty” or “International Agreement”

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Treaty characteristics

Registrable – At least 2 Parties with treaty-making capacity– Intention to create legal obligations at international law– Binding at international law – Entry into force date/method– Old/Terminated agreements included

Not registrable – Mere political declarations– Agreements governed by domestic law– Not in force; no simple signature

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Treaty-Making Capacity

Capacity:• At least two parties

- Sovereign states - Intergovernmental organizations

No capacity:• Non-state entities

- Secretariat is guided by GA/SC resolutions

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Summary

• Treaty/International Agreement

– whatever its form and descriptive name

• Parties

– treaty-making capacity on international plane– intention to create obligations at international

law

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Types of Subsequent Actions to Treatiesregistered by the UN Secretariat

• Multilateral– Ratification/Accession– Termination– Extension to territories– Denunciation– Amendment

• Bilateral– Change in parties– Modification of terms/Termination– Change in scope of application

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Filing and Recording

• Agreements not subject to registration are voluntarily filed and recorded (but are still published by the UN Secretariat).

• Includes agreements 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

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Requirements for Member States for the Registration of Treaties

Regulations to give effect to Article 102 » uniform guidelines

• Treaty/international agreement (Article 102)• Must have already entered into force• Accompanied by a Certifying Statement:

“text is a true and complete copy thereof and includes all reservations/declarations made by the parties thereto”

Full titleDate and place of conclusionDate and method of Entry into ForceAll authentic languages

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• Submission must be complete - e.g., authentic texts, protocols, annexes, maps

• Copy of submission must be legible

* Any parent agreement or related agreements that are incorporated by reference must already be registered

Date of effect of registration = date of receipt by Secretariat of the complete submission

Requirements

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Requirements for Publication

• Electronic copy (G.A. Res. A/RES/51/158 of 10 Jan. 97)

– Diskette or CD-ROM

• Courtesy translations into any of the six official languages (preferably English/French)

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Communication by Secretariat

• If successful:

Submitter receives a certificate of registration

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Communication by Secretariat (Continued)

• If there is a problem with the registration:

Submitter is most commonly requested to submit missing information or clarify:

Authentic language versions Entry into force information Missing annexes, protocols, etc. Translations and electronic copy

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Summary

• Documentation complete; meets definition of “international agreement” under Article 102 and its Regulations

• Certifying statement correct and matches the Agreement itself

• Translations/electronic copy submitted

Agreement registered and published

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Publication MandateOLA Treaty Section

• Monthly Statement

• Publication of Treaties in the United Nations Treaty Serieshttp://treaties.un.org

• Publication Mandate:- Article 12 of the Regulations to give effect to Article 102 (see Treaty Handbook p. 32)

- Modified by A/153 of 15 December 1997

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United Nations Treaty Series Limited Publication Policy

• Exceptions to publication in extenso:

– Assistance / co-operation agreements of limited scope:

– financial, commercial, administrative or technical matterse.g. project agreements, World Bank bilateral financial agreements

– Agreements relating to the organization of conferences, seminars or meetings

– Agreements that are to be published elsewhere by UN Secretariat or specialized or related agency

e.g. IAEA agreements

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United Nations Treaty Series Limited Publication Policy

Exceptions to publication in extenso:

- Lengthy lists of products attached to trade agreements

- And: Agreements of the European Community/Union 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

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United Nations Treaty Series

• Published in a single series beginning in 1946 (with the SG’s annual report, UNTS is 1 of only 2 publications mandated in the UN Charter)

• All integral elements of an agreement including protocols, agreed minutes, attachments and maps

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United Nations Treaty SeriesPublications

• 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

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UNTS on the Internet http://treaties.un.org

• Full texts of treaties and treaty actions with textual component are available.– Including declarations, statements,

reservations, etc.

• Search and retrieval capabilities for all treaties

• Facility to view, save and print the full texts of treaties.

• Full texts of multilateral treaties deposited with the Secretary-General awaiting publication in the UNTS

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Requirements for Faster Publication of Treaties Submitted for Registration

• Clean, legible hard copies submitted

• TRANSLATIONS – into English and French

• Electronic text (Wordperfect, Word, PdF, Tif, etc.)

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Legal Technical Assistance Provided by the Office of Legal Affairs

• Research for Member States and their Governments

• Texts and parties to multilateral and bilateral treaties

• Capacity-building Trainings at Headquarters and in the regions

• Individual assistance provided by Legal Officers on specific treaty-related questions

• Reference to substantive offices and treaty bodies

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