Terms for UN Member State Treaty Actions, as RESERVATIONS
Author: Womens UN Report Network
Date: July 29, 2013
WUNRN
TERMS FOR UN MEMBER STATE TREATY
ACTIONS, as RESERVATIONS
United Nations Treaty Collection
Website:
Example of a Glossary Term of high
interest to women, RESERVATION. as Country/Member State Reservations to
CEDAW
Scroll down to see individual State
Reservations.
Declarations
and Reservations are usually made upon UN Member
State Ratification, Accession or Succession to a specific Treaty.
A reservation is a declaration made
by a state by which it purports to exclude or alter the legal effect of certain
provisions of the treaty in their application to that state. A reservation
enables a state to accept a multilateral treaty as a whole by giving it the
possibility not to apply certain provisions with which it does not want to
comply. Reservations can be made when the treaty is signed, ratified, accepted,
approved or acceded to. Reservations must not be incompatible with the object
and the purpose of the treaty. Furthermore, a treaty might prohibit reservations
or only allow for certain reservations to be made.
[Arts.2 (1) (d) and 19-23, Vienna
Convention of the Law of Treaties 1969]
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http://treaties.un.org/Pages/Overview.aspx?path=overview/glossary/page1_en.xml#reservation
Glossary of Terms for United Nations Treaty Actions
This glossary is intended as
a general guide and is not presumed to be exhaustive
Adoption
Acceptance or Approval
Accession
Act of Formal Confirmation
Amendment
Authentication
Correction of Errors
Declarations
Definitive Signature
Deposit
Entry into Force
Exchange of Letters/Notes
Full Powers
Modification
Notification
Objection
Provisional Application
Ratification
Registration and Publication
Reservation
Revision
Signature ad referendum
Signature Subject to Ratification, Acceptance
or Approval
1. Adoption
“Adoption” is the formal
act by which the form and content of a proposed treaty text are established. As
a general rule, the adoption of the text of a treaty takes place through the
expression of the consent of the states participating in the treaty-making
process. Treaties that are negotiated within an international organization will
usually be adopted by a resolution of a representative organ of the
organization whose membership more or less corresponds to the potential
participation in the treaty in question. A treaty can also be adopted by an
international conference which has specifically been convened for setting up
the treaty, by a vote of two thirds of the states present and voting, unless,
by the same majority, they have decided to apply a different rule.
[Art.9, Vienna Convention of the Law
of Treaties 1969]
The instruments of
“acceptance” or “approval” of a treaty have the same legal
effect as ratification and consequently express the consent of a state to be
bound by a treaty. In the practice of certain states acceptance and approval have
been used instead of ratification when, at a national level, constitutional law
does not require the treaty to be ratified by the head of state.
[Arts.2 (1) (b) and 14 (2), Vienna
Convention on the Law of Treaties 1969]
“Accession” is the act
whereby a state accepts the offer or the opportunity to become a party to a
treaty already negotiated and signed by other states. It has the same legal
effect as ratification. Accession usually occurs after the treaty has entered
into force. The Secretary-General of the United Nations, in his function as
depositary, has also accepted accessions to some conventions before their entry
into force. The conditions under which accession may occur and the procedure
involved depend on the provisions of the treaty. A treaty might provide for the
accession of all other states or for a limited and defined number of states. In
the absence of such a provision, accession can only occur where the negotiating
states were agreed or subsequently agree on it in the case of the state in
question.
[Arts.2 (1) (b) and 15, Vienna
Convention on the Law of Treaties 1969]
“Act of formal
confirmation” is used as an equivalent for the term
“ratification” when an international organization expresses its
consent to be bound to a treaty.
[Arts.2 (1) (b bis) and 14, Vienna
Convention on the Law of Treaties between States and International
Organizations or between International Organizations 1986]
The term “amendment” refers
to the formal alteration of treaty provisions affecting all the parties to the
particular agreement. Such alterations must be effected with the same
formalities that attended the original formation of the treaty. Many
multilateral treaties lay down specific requirements to be satisfied for
amendments to be adopted. In the absence of such provisions, amendments require
the consent of all the parties.
[Art.40, Vienna Convention of the Law
of Treaties 1969]
The term “authentication”
refers to the procedure whereby the text of a treaty is established as
authentic and definitive. Once a treaty has been authenticated, states cannot
unilaterally change its provisions. If states which negotiated a given treaty
do not agree on specific procedures for authentication, a treaty will usually
be authenticated by signature, signature ad referendum or the initialling by
the representatives of those states.
[Art.10, Vienna Convention on the Law
of Treaties 1969]
If, after the authentication of a
text, the signatory and contracting states are agreed that it contains an
error, it can be corrected by initialling the corrected treaty text, by
executing or exchanging an instrument containing the correction or by executing
the corrected text of the whole treaty by the same procedure as in the case of
the original text. If there is a depositary, the depositary must communicate
the proposed corrections to all signatory and contracting states. In the UN
practice, the Secretary-General, in his function as depositary, informs all
parties to a treaty of the errors and the proposal to correct it. If, on the
expiry of an appropriate time-limit, no objections are raised by the signatory
and contracting states, the depositary circulates a proces-verbal of
rectification and causes the corrections to be effected in the authentic
text(s).
[Art.79, Vienna Convention on the Law
of Treaties 1969]
Sometimes states make
“declarations” as to their understanding of some matter or as to the
interpretation of a particular provision. Unlike reservations, declarations
merely clarify the state’s position and do not purport to exclude or modify the
legal effect of a treaty. Usually, declarations are made at the time of the
deposit of the corresponding instrument or at the time of signature.
When the treaty is not subject to
ratification, acceptance or approval, “definitive signature”
establishes the consent of the state to be bound by the treaty. Most bilateral
treaties dealing with more routine and less politicized matters are brought
into force by definitive signature, without recourse to the procedure of
ratification.
[Art.12, Vienna Convention on the Law
of Treaties 1969]
After a treaty has been concluded,
the written instruments, which provide formal evidence of consent to be bound,
and also reservations and declarations, are placed in the custody of a
depositary. Unless the treaty provides otherwise, the deposit of the
instruments of ratification, acceptance, approval or accession establishes the
consent of a state to be bound by the treaty. For treaties with a small number
of parties, the depositary will usually be the government of the state on whose
territory the treaty was signed. Sometimes various states are chosen as
depositaries. Multilateral treaties usually designate an international
organization or the Secretary-General of the United Nations as depositaries.
The depositary must accept all notifications and documents related to the
treaty, examine whether all formal requirements are met, deposit them, register
the treaty and notify all relevant acts to the parties concerned.
[Arts.16, 76 and 77, Vienna
Convention on the Law of Treaties 1969]
Typically, the provisions of the
treaty determine the date on which the treaty enters into force. Where the
treaty does not specify a date, there is a presumption that the treaty is
intended to come into force as soon as all the negotiating states have
consented to be bound by the treaty. Bilateral treaties may provide for their
entry into force on a particular date, upon the day of their last signature,
upon exchange of the instruments of ratification or upon the exchange of
notifications. In cases where multilateral treaties are involved, it is common
to provide for a fixed number of states to express their consent for entry into
force. Some treaties provide for additional conditions to be satisfied, e.g.,
by specifying that a certain category of states must be among the consenters.
The treaty may also provide for an additional time period to elapse after the
required number of countries have expressed their consent or the conditions
have been satisfied. A treaty enters into force for those states which gave the
required consent. A treaty may also provide that, upon certain conditions
having been met, it shall come into force provisionally.
[Art.24, Vienna Convention on the Law
of Treaties 1969]
States may express their consent to
be bound by an “exchange of letters/notes”. The basic characteristic
of this procedure is that the signatures do appear not on one letter or note
but on two separate letters or notes. The agreement therefore lies in the
exchange of both letters or notes, each of the parties having in their
possession one letter or note signed by the representative of the other party.
In practice, the second letter or note, usually the letter or note in response,
will typically reproduce the text of the first. In a bilateral treaty, letters
or notes may also be exchanged to indicate that all necessary domestic
procedures have been completed.
[Art.13, Vienna Convention on the Law
of Treaties 1969]
“Full powers” means a
document emanating from the competent authority of a state designating a person
or persons to represent the state for negotiating, adopting, authenticating the
text of a treaty, expressing the consent of a state to be bound by a treaty, or
for accomplishing any other act with respect to that treaty. Heads of State,
Heads of Government and Ministers for Foreign Affairs are considered as
representing their state for the purpose of all acts relating to the conclusion
of a treaty and do not need to present full powers. Heads of diplomatic
missions do not need to present full powers for the purpose of adopting the
text of a treaty between the accrediting state and the state to which they are
accredited. Likewise, representatives accredited by states to an international
conference or to an international organization or one of its organs do not need
to present full powers for the purpose of adopting the text of a treaty in that
conference, organization or organ.
[Art.2 (1) (c) and Art.7 Vienna
Convention on the Law of Treaties 1969]
The term “modification”
refers to the variation of certain treaty provisions only as between particular
parties of a treaty, while in their relation to the other parties the original
treaty provisions remain applicable. If the treaty is silent on modifications,
they are allowed only if the modifications do not affect the rights or
obligations of the other parties to the treaty and do not contravene the object
and the purpose of the treaty.
[Art.41, Vienna Convention on the Law
of Treaties 1969]
The term “notification”
refers to a formality through which a state or an international organization
communicates certain facts or events of legal importance. Notification is
increasingly resorted to as a means of expressing final consent. Instead of
opting for the exchange of documents or deposit, states may be content to
notify their consent to the other party or to the depositary. However, all
other acts and instruments relating to the life of a treaty may also call for
notifications.
[Arts.16 (c), 78 etc,. Vienna Convention
on the Law of Treaties 1969]
Any signatory or contracting state
has the option of objecting to a reservation, inter alia, if, in its opinion,
the reservation is incompatible with the object and purpose of the treaty. The
objecting state may further declare that its objection has the effect of
precluding the entry into force of the treaty as between objecting and
reserving states.
[Art.20-23, Vienna Convention on the
Law of Treaties 1969]
17. Provisional
Application and Provisional Entry into Force of Treaties
1. Provisional Application
The growing use of provisional application
clauses in treaties is a consequence of the need felt to give effect to treaty
obligations prior to a state?s formal ratification of/accession to a treaty.
The obligations relating to provisional application are undertaken by a
conscious voluntary act of the state consistent with its domestic legal
framework.
Provisional application of a treaty that has
entered into force
The provisional application of a treaty that
has entered into force may occur when a state undertakes to give effect to the
treaty obligations provisionally although its domestic procedures for
ratification/accession have not yet been completed. The intention of the state
would be to ratify/accede to the treaty once its domestic legal requirements
have been met. Provisional application may be terminated at any time. In
contrast, a state which has consented to be bound by a treaty through
ratification/accession or definitive signature, is governed by the rules on
withdrawal specified in the treaty concerned (Arts. 54, 56, Vienna Convention
on the Law of Treaties 1969).
[Art. 25, Vienna Convention on the Law of
Treaties 1969]
Provisional application of a treaty that has
not entered into force
Provisional application of a treaty that has
not entered into force may occur when a state notifies that it would give
effect to the legal obligations specified in that treaty provisionally.
These legal obligations are undertaken by a conscious voluntary act of the
state consistent with its domestic legal framework. Provisional application may
be terminated at any time. In contrast, a state which has consented to be bound
by a treaty through ratification/ accession or definitive signature, is
governed by the rules on withdrawal specified in the treaty concerned (Arts.
54, 56, Vienna Convention on the Law of Treaties 1969).
Provisional application may continue even
after the entry into force of the treaty in relation to a state applying the
treaty provisionally until that state has ratified it. Provisional application
terminates if a state notifies the other states among which the treaty is being
applied provisionally of its intention of not becoming a party to the treaty.
[Art. 25 (2), Vienna Convention on the Law of
Treaties 1969]
2. Provisional Entry into Force
There are also an increasing number of
treaties which include provisions for provisional entry into force. Such
treaties provide mechanisms for entry into force provisionally, should the
formal criteria for entry into force not be met within a given period.
Provisional entry into force of a treaty may also occur when a number of
parties to a treaty which has not yet entered into force, decide to apply the
treaty as if it had entered into force. Once a Treaty has entered into force
provisionally, it is binding on the parties which agreed to bring it into force
provisionally.
The nature of the legal obligations resulting
from provisional entry into force would appear to be the same as the legal
obligations in a treaty that has entered into force, as any other result would
create an uncertain legal situation. It is the criteria for formal entry into
force that have not been met but the legal standard of the obligations remains.
[Art. 25 (1), Vienna Convention on the Law of
Treaties 1969]
Ratification defines the
international act whereby a state indicates its consent to be bound to a treaty
if the parties intended to show their consent by such an act. In the case of
bilateral treaties, ratification is usually accomplished by exchanging the
requisite instruments, while in the case of multilateral treaties the usual
procedure is for the depositary to collect the ratifications of all states, keeping
all parties informed of the situation. The institution of ratification grants
states the necessary time-frame to seek the required approval for the treaty on
the domestic level and to enact the necessary legislation to give domestic
effect to that treaty.
[Arts.2 (1) (b), 14 (1) and 16,
Vienna Convention on the Law of Treaties 1969]
19.
Registration and Publication
Article 102 of the Charter of the
United Nations provides that “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”. Treaties or agreements that are not registered
cannot be invoked before any organ of the United Nations. Registration promotes
transparency and the availability of texts of treaties to the public. Article
102 of the Charter and its predecessor, Article 18 of the Pact of the League of
Nations, have their origin in one of Woodrow Wilson’s Fourteen Points in which
he outlined his idea of the League of Nations: “Open covenants of peace,
openly arrived at, after which there shall be no private international
understandings of any kind but diplomacy shall proceed always openly and in the
public view”.
[Art.80, Vienna Convention on the Law
of Treaties 1969]
20. Reservation
A reservation is a declaration made by a state by which it purports to
exclude or alter the legal effect of certain provisions of the treaty in their
application to that state. A reservation enables a state to accept a
multilateral treaty as a whole by giving it the possibility not to apply
certain provisions with which it does not want to comply. Reservations can be
made when the treaty is signed, ratified, accepted, approved or acceded to.
Reservations must not be incompatible with the object and the purpose of the
treaty. Furthermore, a treaty might prohibit reservations or only allow for
certain reservations to be made.
Revision has basically the same meaning as amendment. However, some treaties
provide for a revision additional to an amendment (i.e., Article 109 of the
Charter of the United Nations). In that case, the term “revision”
refers to an overriding adoption of the treaty to changed circumstances,
whereas the term “amendment” refers only to a change of singular
provisions.
A representative may sign a treaty “ad referendum”, i.e., under
the condition that the signature is confirmed by his state. In this case, the
signature becomes definitive once it is confirmed by the responsible organ.
23. Signature Subject to
Ratification, Acceptance or Approval
Where the signature is subject to ratification, acceptance or approval, the
signature does not establish the consent to be bound. However, it is a means of
authentication and expresses the willingness of the signatory state to continue
the treaty-making process. The signature qualifies the signatory state to
proceed to ratification, acceptance or approval. It also creates an obligation
to refrain, in good faith, from acts that would defeat the object and the
purpose of the treaty.
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