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3476 results in UN and International Organisations

Page 94 of 174

  • Appendix K - Final Act of the Vienna Conference

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 433-438

  • Summary

    1. The General Assembly of the United Nations, having considered chapter II of the report of the International Law Commission on the work of its eighteenth session (A/6309/Rev.1, Part II), which contained final draft articles and commentaries on the law of treaties, decided, by its resolution 2166 (XXI) of 5 December 1966, to convene an international conference of plenipotentiaries to consider the law of treaties and to embody the results of its work in an international convention and such other instruments as it might deem appropriate. By the same resolution, the General Assembly requested the Secretary-General to convoke the first session of the conference early in 1968 and the second session early in 1969. Subsequently, the General Assembly, noting that an invitation had been extended by the Austrian Government to hold both sessions of the conference at Vienna, decided, by resolution 2287 (XXII) of 6 December 1967, that the first session should be convened at Vienna in March 1968. At its fifth meeting, held on 24 May 1968, at the conclusion of the first session, the Conference adopted a resolution requesting the Secretary-General to make all the necessary arrangements for the Conference to hold its second session at Vienna from 9 April to 21 May 1969.

    2. The first session of the United Nations Conference on the Law of Treaties was held at the Neue Hofburg, Vienna, from 26 March to 24 May 1968. The second session of the Conference was also held at the Neue Hofburg, from 9 April to 22 May 1969.

  • 8 - Reservations

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 114-144

  • Summary

    The subject of reservations to multilateral treaties is one of unusual – in fact baffling – complexity.

    a matter of considerable obscurity in the realm of juristic speculation.

    These depressing views by the eminent international lawyers, Hersch Lauterpacht and O’Connell in 1953 and 1970, respectively, are even truer today. The last word had not been said in Articles 19–23 of the Convention. As is apparent from the vast amount that has been written on the subject, a spirited debate has developed on how those articles should be applied, especially the effect of an objection to a reservation on the ground that it is contrary to the object and purpose of the treaty: an issue seen as particularly relevant to human rights treaties.

    It would be wrong to think that the problems are just theoretical. Since the Second World War, and especially during the last quarter of the twentieth century and the years that followed, there has been an enormous increase in the number and complexity of multilateral treaties on all subjects, and in the number of states adhering to them. In 1945, the United Nations had fifty-one members; by the end of 2012 it had 193. In the twenty years from 1975 to 1995 just one state, the United Kingdom, became a party to some 330 multilateral treaties, and made reservations to forty-five of them. Every week foreign ministries are notified of new reservations. They have to consider whether they are acceptable and, if not, what to do about them. Officials, including legal advisers, can be hampered by the misunderstandings and uncertainties that surround the subject. These can cause problems also for depositaries. The other side of the coin, foreign ministries, will also have to consider carefully whether their state should make reservations to treaties they wish to ratify. Yet there are few decisions of international or national courts and tribunals on reservations. Although there are some problems with reservations to treaties, the lack of judgments about them may indicate that practical problems with reservations may not loom quite as large as the extensive literature might suggest.

  • 2 - What is a treaty?

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 14-27

  • Summary

    the intolerable wrestle with words and meanings.

    Like the Vienna Convention, this book is concerned primarily with treaties between states. Article 2(1)(a) defines a ‘treaty’ as:

    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.

    As with most of the Convention, although the definition is expressed to be for the purposes of that Convention, and is limited to treaties between states, its elements now represent customary international law (see Chapter 1). As with so many legal questions, the difficulty is not the definition itself, but whether a particular instrument or transaction falls within it. An examination of the elements of the definition illustrates some of the key principles underlying the law of treaties.

    But, first, a warning. The law of treaties is extremely flexible and can accommodate departures from normal practice. That is its strength. But most treaties are drafted according to standard forms and processed according to long-established procedures. One should, therefore, think very carefully before departing from them. But provided there is a good reason for a departure, and one knows exactly what one is doing and is aware of any legal implications, there should be no problem. Difficulties can arise when there is an honest, but misguided, wish to speed up the process; the initiative often coming from the state promoting the negotiation of a multilateral treaty.

  • 19 - Registration and publication

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 297-307

  • Summary

    Order is heaven's first law.

    McNair emphasised the importance of registering and publishing treaties, and rightly saw the United Nations Treaty Series (UNTS) as ‘an indispensable piece of international apparatus’. Yet sometimes it can still be difficult to find the text of treaties, particularly recent ones. Although there are other ways of finding them using the Internet (even Google), the main place is still the UNTS. But, as we shall see, many treaties are never registered with the United Nations. A treaty cannot be registered until it is in force, and even when it has been registered, its publication in the UNTS may be delayed. And, even once it is in the UNTS, there may be difficulty in searching for it, especially online, unless one knows the registration number. So, this book gives that number, whenever possible.

    This chapter will explain the procedure for registering a treaty; note the important improvements that have been made, and which are to be made, to the UNTS; discuss the legal effect of registration or non-registration; and offer suggestions on other ways of finding the texts of treaties, as well as information about treaty status.

  • 10 - Treaties and domestic law

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 159-177

  • Summary

    Treaties are made to be performed.

    It should not be assumed that once a treaty has entered into force for a state it is then in force in that state; in other words, that it has become part of its law. The point is of particular importance for treaties that accord rights to individuals, such as human rights treaties, where the rights are intended to be exercised by them (and sometimes by corporations or companies). International law and domestic law (the law in force within a state; sometimes termed ‘municipal’, ‘internal’ or ‘national’ law) operate on different planes. International law is concerned with the rights and obligations of states and other international legal persons, such as international organisations. When a treaty provides for rights or obligations to be conferred on persons (legal or natural), they can usually be given effect only if they are made part of the domestic law of each party, and with provisions for their enforcement. A good example is the immunities and privileges granted to diplomatic missions and their staff by the Vienna Convention on Diplomatic Relations 1961. For them to be fully effective, the domestic law of the receiving state must accord the required immunities and privileges. Similarly, even though under a treaty, such as the European Convention on Human Rights 1950 or a bilateral investment treaty (BIT), a person can eventually take a state to an international court or tribunal for an alleged breach of his or her rights, actually enforcing a decision may well require that the state's domestic law recognises the award and will enforce it.

  • Appendix P - UN registration regulations

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 443-447

  • Summary

    Registration and publication of treaties and international agreements: regulations to give effect to Article 102 of the Charter of the United Nations

    Adopted by the General Assembly on 14 December 1946 [Resolution 97 (I)], as modified by resolutions 364 B (IV), 482 (V) and 33/141 A, adopted by the General Assembly on 1 December 1949, 12 December 1950 and 18 December 1978, respectively.

    The General Assembly,

    Considering it desirable to establish rules for the application of Article 102 of the Charter of the United Nations which provides as follows:

  • 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.

  • 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.

  • 9 - Entry into force

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 145-158

  • Summary

    The treaty becomes international law after 40 countries have ratified it.

    This suggestion that all states are bound by a (multilateral) treaty once it has entered into force is a common misconception, even among diplomats, and The Times. When a treaty has entered into force, it binds only those states that have consented to be bound by it. A treaty is therefore not like national legislation which, once in force, applies to all to whom it is directed. A treaty is much closer to a contract. But if the treaty reflects (or, rather, comes to reflect) the rules of customary international law a non-party can be bound by those rules, though only as customary international law: it is not a party to the treaty. (For the position of third states, see Chapter 14.)

    Each of the states for which a treaty is in force is a ‘party’ (Article 2(1)(g)). Thereafter it should never be referred to by the – uninformative and misleading – term ‘signatory’. But it must also be remembered that when a state expresses its consent to be bound, it does not necessarily mean that the treaty will enter into force for it then: it will depend on whether the treaty is already in force for the states that have already consented to be bound or whether further consents are needed to bring it into force. A state's consent may, of course, have the effect of bringing the treaty into force if it is the last one needed to do that.

  • 5 - Full powers

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 71-78

  • Summary

    We have judged it expedient to invest a fit person with Full Power to conduct negotiations on Our part in respect of Our United Kingdom of Great Britain and Northern Ireland: Know, therefore, that We, reposing especial Trust and Confidence in the Wisdom, Loyalty, Diligence and Circumspection of our Trusty and Well-beloved Sir Patrick Henry Dean, Knight Commander of Our Most Distinguished Order of Saint Michael and Saint George…

    The quotation is but a small extract from old-style full powers that was still being used by the United Kingdom not so long ago. Some states may still use similar antiquated nonsense. It is therefore not so surprising that an air of mystery still surrounds the topic. Admittedly, it is not the most thrilling aspect of the law of treaties, but failure to follow the complex, but clear, rules on full powers can lead to much needless extra work, vexation and, indeed, even embarrassment. So, please read on.

  • 6 - Adoption and authentication

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 79-86

  • Summary

    And where, though all things differ, all agree.

    Adoption

    Once negotiations are complete, it is necessary for the states that took part in drawing up the treaty to adopt the text. This is the first decisive stage in the conclusion of a treaty. Then, the text has to be authenticated. Thereafter, states can express their consent to be bound by the treaty (see Chapter 7).

    The term adoption is not defined in the Convention, but is the formal act by which the form and content of the treaty are settled; and a state that takes part in the drawing up and adoption of the text is known as a ‘negotiating state’ (Article 2(1)(e)). Unless the circumstances suggest otherwise, the act of adoption does not amount to authentication of, or consent to be bound by, the treaty or mean that the treaty has entered into force. However, as will be explained, in the case of bilateral treaties these various stages are sometimes run together.

    The rules on adoption in Article 9 embody the classic principle that, unless otherwise agreed, adoption needs the consent of all the states that participated in drawing up the text. Until recent times, this was the norm. The article, however, recognises that, since the Second World War, in drawing up treaties in large international conferences or within international organisations, the practice had been for adoption by the affirmative vote of a specified majority of the states. The pre-war unanimity rule is now restricted to the adoption of bilateral treaties or treaties drawn up by only a few states (so-called plurilateral treaties). However, consensus is now frequently sought for multilateral treaties even though it is not always attainable.

  • 3 - MOUs

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 28-54

  • Summary

    Open covenants of peace, openly arrived at, after that there shall be no private international understandings of any kind, but diplomacy shall proceed always frankly and in the public view.

    Since 1919, when US President Woodrow Wilson issued this sincere, but hopelessly unworldly, appeal, diplomacy has continued to develop many new ways of doing business. Even when the subject matter is proper and lawful, diplomats know that it is not possible for all international deals to be embodied in treaties, whether or not they are on trivial or important matters. Yet the deal needs to be formalised on paper in some way. Hence, the relentless rise of the MOU (or political commitment); that instrument, which, although concluded between states, is not legally binding.

    Such non-legally binding instruments have also been variously described as ‘political agreements’, ‘gentlemen's agreements’, ‘non-legally binding agreements’, ‘non-binding agreements’, ‘de facto agreements’, ‘non-legal agreements’, etc. Diplomats – who are well aware of such instruments – generally refer to them, and not only in English, as ‘memorandums of understanding’ or ‘MOUs’. But calling an instrument a memorandum of understanding does not, in itself, determine its status, since – most confusingly – some treaties are also called memorandum of understanding. MOUs (properly so-called) operate as political commitments, and may be distinguished from treaties according to the International Law Commission (ILC) because they are not agreements governed by international law. An MOU may, however, still loosely be referred to as an ‘agreement’, even though it represents a deal between states, there is no intention that it should be legally binding in international law.

  • Appendix C - Single instrument MOU

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 421-422

  • Summary

    Memorandum of Understanding on Defence Contacts and Cooperation between the Government of the Republic of Austria and the Government of the United Kingdom of Great Britain and Northern Ireland

    The Government of the Republic of Austria and the Government of the United Kingdom of Great Britain and Northern Ireland, being known hereafter as the Participants,

  • - acting in the spirit of partnership and cooperation,

  • - acting also in the interests of strengthening security and stability in Europe as a whole and in support of the work plan of the Euro-Atlantic Partnership Council and Partnership for Peace,

  • - sharing the aim of strengthening the good defence relations and increasing the understanding and confidence already established between their respective countries,

  • - with the aim of developing jointly programmes of practical cooperation on a wide range of defence related matters,

    • - have identified, to fulfil these purposes, the following activities:

  • - exchanges between the staffs and students of military colleges and academies with the aim of strengthening confidence and cooperation in defence studies and military education for senior officers,

  • - consultations and exchanges between experts in the field of management of the armed forces in a democratic society,

  • - visits to exchange views on military doctrine, concepts of security and restructuring,

  • - visits to develop friendly relations between the personnel of the armed forces and to share experience of both operational and professional training,

  • - exchanges to share experience of the work of the Directorates of the Ministries of Defence,

  • - visits to discuss the current state of, and the future outlook for, UK–Austria relations in the defence field,

  • - visits to discuss possible future requirements in the defence equipment field,

  • - cooperation on military geography,

  • - and visits to establish personal contacts between the leadership and the command of the armed forces of the two countries.

    • The Participants have decided that, on the basis of this Memorandum of Understanding, the detail of a rolling two-year programme of defence contacts, for use as a flexible management tool, will be presented prior to the Defence Staff Talks, for discussion at the Talks.

  • 12 - Successive treaties

  • Anthony Aust, London School of Economics and Political Science
  • Book:
    Modern Treaty Law and Practice
    Published online:
    28 May 2018
    Print publication:
    24 October 2013, pp 192-204

  • Summary

    The question of conflict between treaties, or incompatibility of treaties with one another, is a complicated matter and it cannot be said that clear guidance has yet come from judicial or arbitral sources.

    McNair's view may lead the reader to turn to Chapter 13; and it has to be said that, although the relationship between successive treaties can be immensely difficult, it does not cause daily consternation in the legal departments of foreign ministries. But, since McNair wrote in 1961, the topic has gained in importance. Because of the greater number and complexity of multilateral treaties, particularly on the environment, questions increasingly arise as to the relationship between successive treaties. In recent years, more has been written on the problem. But it is the sort of puzzle that is difficult to study in the abstract; it can be done properly only in relation to actual treaties and real problems. This chapter will therefore concentrate more on what rules there are, and practical ways of seeking to overcome future problems.

Modern Treaty Law and Practice
  • 3rd edition
  • Anthony Aust
  • Published online:
    28 May 2018
    Print publication:
    24 October 2013
  • This new edition of a textbook first published in 2000 provides a comprehensive account of the law of treaties from the viewpoint of an experienced practitioner. As such, it is the first, and only, book of its kind. Aust provides a wealth of examples of the problems experienced with treaties on a daily basis, not just when they are the subject of a court case. He explores numerous precedents from treaties and other related documents, such as memorandums of understanding (MOUs), in detail. Using clear, accessible language, the author covers the full extent of treaty law, drawing examples from both treaties and MOUs. Modern Treaty Law and Practice is essential reading for teachers and students of law, political science, international relations and diplomacy, who have an interest in treaties.

Page 94 of 174